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The Queen v Haig [2006] NZCA 226; (2006) 22 CRNZ 814 (23 August 2006)

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The Queen v Haig [2006] NZCA 226 (23 August 2006); (2006) 22 CRNZ 814

Last Updated: 21 December 2011


IN THE COURT OF APPEAL OF NEW ZEALAND

CA267/04THE QUEEN

v

JOHN REX HAIG

Hearing: 12 June 2006


Court: William Young P, Hammond and Chambers JJ


Counsel: J H M Eaton for Appellant
K B F Hastie and M J Thomas for Crown


Judgment: 23 August 2006 at 2.15pm


JUDGMENT OF THE COURT

  1. The conviction for murder is quashed.
  2. There is to be no retrial but instead the proceedings are permanently stayed.

REASONS

William Young P, and Chambers J [1]
Hammond J [113]


WILLIAM YOUNG P AND CHAMBERS J

(Given by William Young P)


Table of Contents Para No


Introduction [1]
The disappearance of the deceased [2]
The police investigation [7]
The murder of Anton Sherlock [17]
The key features of the Crown case [21]
The trial in the Invercargill High Court [26]
First appeal [39]
Events leading to this reference [42]
The terms of the Order-in-Council [45]
Our role under s 406 [49]
The approach to be taken on appeal to fresh evidence arguments [52]
The issues we must determine [62]
Should the conviction for murder be quashed? [64]
Overview [64]
The timing issue [66]
Admissions allegedly made by Hogan [79]
Alleged involvement by Hogan in Sherlock’s murder [88]
The conduct of the defence at trial [94]
Other issues [97]
The Crown response [99]
Our evaluation [103]
Should there be a new trial? [106]


Introduction

[1] On 9 November 1995, John Rex Haig (to whom we will refer as “the appellant”) was found guilty by a jury in the High Court at Invercargill of murdering Mark Roderique (“the deceased”). A subsequent appeal to this Court was dismissed in July 1996. However, by Order-in-Council made in June 2004, the question of his conviction was referred to this Court under s 406(a) of the Crimes Act 1961. We will discuss the terms of the Order-in-Council later in this judgment.

The disappearance of the deceased

[2] In the last months of his life the deceased worked on the Antares, a fishing vessel which was owned and skippered by the appellant. Between 15 January 1994 and 13 February 1994 the appellant, the deceased and two other men were on the Antares targeting tuna off the West Coast of New Zealand. The other men were David Hogan (then 18 years of age) who was the appellant’s nephew by marriage, and Tony Sewell.
[3] The Antares arrived at Jackson’s Bay in South Westland some time during the late morning on 13 February 1994. She was tied up to the wharf. With some assistance from a local Talley’s representative, the four crew unloaded the catch. They then went to Haast to obtain supplies and to have a few drinks at the Haast hotel. They returned to the Antares in the late afternoon or evening.
[4] There followed a brief period of socialising in the galley of the Antares. Also present were Peter Squires and Brent Gorman, whose vessel, the Koromiko, was tied up on the other side of the wharf. It is not clear on the evidence what lights, if any, were on in the galley. If there were lights on, they were powered either by the vessel’s batteries or its genset.
[5] It is common ground that there was antagonism between Hogan and the appellant on the one hand and the deceased on the other resulting in an altercation which may have involved some physical interaction between the appellant and the deceased. The upshot was that the appellant sacked the deceased. Shortly afterwards, the deceased threatened Hogan with a knife and the appellant and Hogan chased him off the Antares and along the wharf. They caught up with him not far from the end of the wharf. The appellant struck the deceased several times with what was either a length of wood (which according to one witness resembled an axe handle) or a piece of metal pipe. Either the appellant or Hogan picked up the deceased’s knife. The deceased was left lying in a ditch beside the road leading away from the wharf.
[6] It is likewise clear that the deceased returned to the Antares and got back on board. There is no evidence to suggest that he left the vessel alive. He made no subsequent contact with family and friends and he made no use of his bank account. The Antares left Jackson’s Bay within a few hours (at the most) of the deceased going on board. The Crown case has always been that shortly after the Antares left the wharf, the deceased’s body, weighed down with a long line anchor from the Antares, was dropped into the sea in the vicinity of Jackson’s Bay. To date, no other plausible explanation for the disappearance of the deceased has been advanced.

The police investigation

[7] The police investigation into the disappearance of the deceased did not get underway until May or June 1994.
[8] At an early stage of this investigation, the police learnt of the altercation between Hogan, the appellant and the deceased which ended up with the deceased lying injured in the ditch near the end of the wharf at Jackson’s Bay. They also had evidence which indicated that the deceased subsequently returned to the Antares. There being no evidence to suggest that the deceased ever, subsequently, left the vessel alive, the police inquiries necessarily focused on the appellant, Hogan and Sewell.
[9] In their initial statements to the police, all three men maintained that the deceased had not been on the vessel when it left the wharf. Their statements varied in detail, but their drift was the same, namely that the deceased went back to the boat to collect his gear and was not on the vessel when it left the wharf. On their statements, the appellant must have left Jackson’s Bay either by road (in the direction of Haast) or on another fishing boat.
[10] At the end of July 1994, William David Barr, a friend of Hogan, made a statement to the police in which he alleged that Hogan had admitted participation in the murder of the deceased. The admission attributed by Barr to Hogan was in terms which suggested that Hogan had shot the deceased. The police did not, however, at this stage re-interview Hogan. In a subsequent statement made to the police on 6 September 1994, Barr claimed that Hogan had threatened him.
[11] On 13 September 1994 there was a Crime Watch programme about the disappearance of the deceased. In the course of this programme, the possibility of immunity for witnesses who may have had a peripheral role in the death of the deceased was mentioned as was a reward for information leading to the conviction of his killer.
[12] On 14 September 1994, Anton Sherlock, another friend of Hogan, made a statement to the police in which he alleged that Hogan had admitted to him the murder of the deceased. According to Sherlock, Hogan claimed that he had beaten the deceased and then killed him by shooting him. In the same statement, Sherlock indicated that he was concerned that Hogan would kill him if he knew that he (ie Sherlock) had been speaking to the police.
[13] On 30 September 1994, Hogan went to the Invercargill police and gave an account of events which implicated the appellant as the deceased’s murderer. The interview was terminated late 30 September on the basis that Hogan would return the next day to complete his statement. In fact he did not return but rather was taken by the appellant to Christchurch. He was located there by the police and on 8 October 1994 he made another statement in which he again maintained that the appellant murdered the deceased. The account of events which he gave on this occasion differed in a number of respects from the account of events he had given at the end of September.
[14] The following day, that is 9 October 1994, Sewell was arrested on the basis that he had been an accessory after the fact to murder. In the end he was released without charge. In the meantime he had given an account of events which broadly tied in with that given by Hogan and thus also implicated the appellant, albeit less graphically than Hogan’s statements.
[15] The appellant was arrested and charged with murder the same day, ie 9 October.
[16] The Solicitor-General gave immunity to Hogan and Sewell and they were the primary Crown witnesses at the appellant’s trial.

The murder of Anton Sherlock

[17] On 25 March 1995 Anton Sherlock was murdered.
[18] On 7 April 1995 his body was found in a stream about seven miles north of Lumsden. He had been beaten to death with a blunt object.
[19] On the day of his death Sherlock had been in the company of Nigel Johnstone. Johnstone was subsequently arrested and charged with Sherlock’s murder. He was tried in February 1996 in the High Court in Invercargill, found guilty and sentenced to life imprisonment. A subsequent appeal to this Court was dismissed on 30 September 1996, see R v Johnstone CA112/96 30 September 1996.
[20] Johnstone’s defence at trial involved the assertion, which he now acknowledges is untrue, that he had not been with the deceased at the time of his death.

The key features of the Crown case against the appellant

[21] There were a number contextual considerations relied on by the Crown:
[22] After the altercation which resulted in the deceased being left lying in the ditch near the end of the wharf, the deceased returned to the Antares.
[23] Although there was uncertainty as to the precise movements of the appellant, Hogan and Sewell in the period which followed the deceased’s return to the Antares, the appellant was alone with the deceased on the vessel for an appreciable period of time prior to its departure. During that time, the appellant assaulted the deceased seriously and tied him up.
[24] When Sewell and Hogan returned to the vessel, the appellant took the Antares off the wharf at Jackson’s Bay. He then left Sewell (who was extremely drunk) to steer the vessel. He showed Hogan the deceased, who was in the lavatory of the vessel, tied up and badly injured. In the presence of Hogan, the appellant continued to assault the deceased to the point where the deceased died. In the course of this he accidentally damaged the lavatory bowl. In the meantime, Sewell, while at the helm, had managed to lose his course completely. Once this was sorted out, Hogan and the appellant weighted the deceased’s body with a long line anchor and threw it overboard in or around Jackson’s Bay. The next day the deceased’s clothes and other personal effects were also thrown overboard, this time by Hogan with the assistance of Sewell.
[25] On the Crown case, the appellant had a powerful motive to kill the deceased. Given that the appellant had beaten the deceased with a metal pipe (or a piece of wood perhaps resembling an axe handle) and had sacked him and also the general atmosphere of animosity, the appellant had every reason to think that the deceased might report his paua poaching plans (which were critical to his financial position) to the authorities.

The trial in the Invercargill High Court

[26] At trial the appellant did not advance a particular theory to account for the deceased’s disappearance. In particular, he did not place particular reliance on his videotaped interview with the police in June 1994. Rather, the defence attacked the evidence of Hogan (which directly implicated the appellant in the murder of the deceased) and, to a lesser extent, that of Sewell (which broadly corroborated the evidence of Hogan).
[27] There were grounds for attacking the credibility of both men.
[28] Hogan’s account of events was not consistent with the evidence of Crown witnesses as to timing (a point which we will discuss in detail shortly). He was a self-confessed liar. He had convictions for dishonesty. He only came forward after he heard of the offer of a reward and possible immunity. As well, there was a significant evolution, at least in detail, between what he told the police on 30 September 1994 and what he said in October 1994 (which formed the basis of his brief of evidence at trial). As well, there was evidence from Barr and in the form of Sherlock’s September 1994 statement to the effect that Hogan had confessed to being the murderer.
[29] Sewell too had his difficulties. He had a prior conviction for perjury. His account of events at trial was significantly different from what he first told the police and in at least one important respect was more damaging to the appellant than what he had told the police in October 1994. As well, at the critical time, he was grossly intoxicated.
[30] An assertion that Hogan might have been the murderer was implicit in the general way in which the case for the defence was run. In particular Hogan was cross-examined as to the admissions which he had allegedly made to Barr and Sherlock. In addition, Barr was called as a defence witness and he gave evidence as to those admissions. Sherlock’s statement to the police recording admissions made by Hogan was in evidence before the jury. Counsel for the appellant, however, did not unequivocally put it to Hogan (or Sewell for that matter) that Hogan had murdered the deceased. Instead, the challenge to Hogan’s evidence was on a general level with the primary thrust of the defence being that he was an unreliable witness rather than the murderer. By way of example his timings were challenged with a view to disputing the opportunity which, on his evidence, the appellant had to disable the deceased but not with a view to showing that he, ie Hogan, had a similar opportunity.
[31] The appellant did not give evidence in his own defence. Instead the only narrative account from the accused which the jury had was his statement to the police in June 1994. As already indicated, this statement does not appear to have been put at the forefront of the defence case at trial which instead focused on weaknesses in the Crown case.
[32] We have no difficulty understanding why counsel for the appellant conducted the case in this way at trial.
[33] We think it clear that the deceased did not leave Jackson’s Bay otherwise than on the Antares. Yet in the appellant’s diary is an assertion (which he later acknowledged was false) that he had paid the deceased $100 on him leaving the ship. That is a very significant false assertion because it invites the question why the appellant thought it necessary to record a false account of how the deceased parted from him. On the appellant’s June 1994 statement, he had a look around the vessel before he set off. The Antares is a large vessel. It is, nonetheless, hard to credit that he would not have noticed that the deceased’s personal belongings were still on the vessel. Assuming that the deceased was on the vessel (alive or dead), it is equally hard to believe that the appellant did not see him as he looked over it. Since there must, on this hypothesis, have been a struggle, it is likewise likely that he would have seen signs of that struggle. The evidence of Sewell as to the long line anchor was not challenged. One might have expected the appellant to have noticed that such an anchor was missing. One thing which emerges clearly from the totality of the evidence as a whole is that Hogan is not a discreet person. If he had murdered the deceased, it seems almost inevitable that he would have confided in his uncle, the appellant.
[34] So we think that the statements which the appellant, Hogan and Sewell made in June 1994 were untrue. A striking feature of these statements is their general consistency. This consistency indicates that all three men decided to co-ordinate their responses to police inquiries. This in turn supports the inference that all three of them knew why such co-ordinated but dishonest stories were necessary, namely to cover up the circumstances in which the deceased met his death, an inference which is also supported by the appellant’s false diary entry.
[35] The long and the short of it is that if Hogan had murdered the deceased, this must have come to the appellant’s attention.
[36] In that context, it would have difficult for the appellant’s counsel to cross-examine Hogan explicitly on the basis that he was the murderer (at least convincingly) without:

(a) Putting to Hogan specifically the details of the alleged murder; and

(b) Calling the appellant as a witness.

The reasons why the appellant was not called as a witness were to some extent explored in an appeal to this Court (see below at [40]) but were not really in issue on the current reference. It will, however, be necessary to discuss the implications of this decision and indeed the evidence given by the appellant in relation to this reference later in this judgment.

[37] As will become apparent, the primary argument of the appellant on this reference is that Hogan murdered the deceased. There is, in this sense, a different focus between the case which was presented to the jury and the arguments advanced before us. We will also revert to this point a little later in this judgment.
[38] At the conclusion of the trial, the appellant was found guilty of the deceased’s murder and sentenced to life imprisonment.

First appeal

[39] The first appeal to this Court was based on a number of grounds. Some of these are of no particular moment for present purposes.
[40] As already indicated, one aspect of the appeal related to the appellant not having given evidence. The argument of the appellant on appeal was that his mental state at trial was such that he was in no condition to give evidence. The arguments (and the evidence) on this aspect of the appeal addressed some tactical considerations (and in particular defence counsel’s optimism that the defence strategy would secure an acquittal without the appellant being required to give evidence) but not the broader questions whether the appellant could credibly have adhered to the narrative given in his June 1994 statement, and, if so, whether he could credibly at the same time have maintained a defence along the lines that Hogan murdered the deceased.
[41] What is also significant for present purposes is that in the judgment dismissing the appeal, this Court considered carefully timing issues associated with the evidence given by Hogan (to which we will revert shortly) and went on to say that these were all matters canvassed before the jury. The Court then went on to say the jury’s verdict depended on the acceptance of Hogan’s evidence in its essentials, but did not depend on their acceptance of this evidence in every detail. The Court continued:

There were always difficulties in the way of a defence based on Hogan being the murderer. Given the situation at Jackson’s Bay, the position of Haig as captain, and the short time the crew were there, it would have been difficult for Hogan to have been the guilty party without the involvement of Haig. Hogan and Sewell gave evidence in the first week of the trial, immediately after the production of exhibits and photographs by the police. Nowhere in their cross-examination was it ever suggested that Hogan was the murderer. Senior Counsel at the trial accepted that he was generally reluctant as defence counsel to call his client to give evidence unless he felt that he had to. At the conclusion of the Crown evidence in this case he felt the Crown case was extremely weak, and it was not absolutely necessary to call Haig. He felt there was a strong likelihood of getting an acquittal without Haig’s evidence, and was as confident as one could be, but certainly was not treating it as a foregone conclusion. He had not at any time prepared a brief of the evidence he would elicit from the appellant if he had called him. The appellant was himself happy and confident of an acquittal after the summing up.

Events leading to this reference

[42] In October 1997 the appellant was involved in the kidnapping of prison officers at Paparoa prison. A stand-off developed which was eventually resolved with the government agreeing to fund an investigation into his complaints as to the safety of his conviction. This investigation was conducted by Mr Nigel Hampton QC and Mr Bryan Rowe, a licensed private investigator with extensive police experience. The result of their investigation was a petition to the government which was lodged on 22 September 1999 and which sought a reference to this Court under s 406(a) of the Crimes Act.
[43] Some fifteen months later the petition was declined by the Ministry of Justice.
[44] The petition was resubmitted in November 2001 accompanied by further written submissions and further affidavit material. The Ministry took the advice of Mr Colin Carruthers QC. In the end Mr Carruthers recommended that the appellant’s conviction for murder be referred to this Court and an Order-in-Council to that effect was made on 21 June 2004.

The terms of the Order-in-Council

[45] The key provision in the Order-in-Council is in these terms:

Pursuant to section 406(a) of the Crimes Act 1961, Her Excellency the Administrator of the Government, –

(a) acting on the advice and with the consent of the Executive Council; and

(b) in the light of the background, and for the reason, stated in the Schedule, –

refers to the Court of Appeal the question of the conviction of Rex Haig for murder entered in the High Court at Invercargill on 9 November 1995.

[46] The Schedule sets out the background, particularly the result of the trial in Invercargill and the unsuccessful appeal. The Schedule then refers to the application lodged on behalf of the appellant in September 1999 and goes on:

(2) The grounds advanced in the application included –

(a) that –

(i) there was evidence relating to the case, not available at the trial of the applicant, to the effect that David Neil Hogan made to a number of people (both before and after the trial) statements admitting involvement in the death of Mark Thomas Roderique; and

(ii) David Neil Hogan gave evidence for the Crown at the trial, and had been granted immunity from prosecution before doing so; and

(iii) the statements referred to in subparagraph (i) were inconsistent with evidence David Neil Hogan gave at the trial; and

(b) that –

(i) Bryan Rowe had undertaken an investigation involving re-examining evidence given at the trial and examining matters arising in the statements referred to in paragraph (a) (i); and

(ii) the results of the investigation suggested that there was a real risk that the conviction was a miscarriage of justice.

[47] The Schedule discusses the initial rejection of the application by the Ministry of Justice and subsequent referral on the advice obtained from Mr Carruthers QC. Clause 3 of the Schedule is in these terms:
  1. Evidence not available at trial—The evidence referred to in clause 2 (2) (a) (i) is set out in the following affidavits:

(a) The affidavit of Frederick Robert Angell dated 1 July 1999;

(b) the affidavit of John Anthony Bakker dated 14 June 1999;

(c) the affidavit of Justin Tait Brown dated 21 July 1999;

(d) the affidavit of Mark David Downing dated 14 June 1999;

(e) the affidavit of Jacqueline Anne Galland dated 14 June 1999;

(f) the affidavit of Gary Murdoch Hopkins dated 11 June 1999;

(g) the affidavit of Geoffrey Haig Jones dated 2 August 1999;

(h) the affidavit of Steven John Keefe dated 1 July 1999;

(i) the affidavit of Shaun Patrick Kelly dated 12 June 1999;

(j) the affidavit of Melanie Sarah Hawea Rei dated 6 July 1999;

(k) the affidavit of Kylie Jane Reidie dated 11 June 1999;

(l) the affidavit of Karen Anne Richardson dated 15 June 1999;

(m) the affidavit of Ivan Brett Skelnars dated 1 July 1999;

(n) the affidavit of Marcus George Wallington dated 21 July 1999.


[48] The Order-in-Council then concludes in these terms:

Reason for Reference

4. Reason—The question of the applicant’s conviction is referred to the Court of Appeal so that it may:

(a) consider the evidence referred to in clause 2 (2) (a) (i); and

(b) consider whether any of the evidence given at the applicant’s trial should be reconsidered:

(i) in the light of the evidence referred to in clause 2 (2) (a) (i); or

(ii) for any other reason; and

(c) in the light of its consideration, determine whether there has been a miscarriage of justice and, if so, take any necessary action.

Our role under s 406

[49] Section 406 of the Crimes Act provides as follows:

406 Prerogative of mercy

Nothing in this Act shall affect the prerogative of mercy, but the Governor-General in Council, on the consideration of any application for the exercise of the mercy of the Crown having reference to the conviction of any person by any Court or to the sentence (other than a sentence fixed by law) passed on any person, may at any time if he thinks fit, whether or not that person has appealed or had the right to appeal against the conviction or sentence, either—

(a) Refer the question of the conviction or sentence to the Court of Appeal or, where the person was convicted or sentenced by a District Court acting in its summary jurisdiction or under section 28F(2) of the District Courts Act 1947, to the High Court, and the question so referred shall then be heard and determined by the Court to which it is referred as in the case of an appeal by that person against conviction or sentence or both, as the case may require; or

(b) If he desires the assistance of the Court of Appeal on any point arising in the case with a view to the determination of the application, refer that point to the Court of Appeal for its opinion thereon, and the Court shall consider the point so referred and furnish the Governor-General with its opinion thereon accordingly.

(Emphasis added)

[50] The words which we have italicised bring into play s 385(1) and (2) of the Crimes Act:

385 Determination of appeals in ordinary cases

(1) On any appeal ... the Court of Appeal must allow the appeal if it is of opinion—

(a) That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

(b) That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) That on any ground there was a miscarriage of justice; or

(d) That the trial was a nullity—

and in any other case shall dismiss the appeal:

Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

(2) Subject to the special provisions of this Part of this Act, the Court of Appeal must, if it allows an appeal ... quash the conviction and in its discretion direct a judgment and verdict of acquittal to be entered, or direct a new trial, or make such other order as justice requires.

[51] The jurisprudence on s 406 which was reviewed in detail by this Court in R v Ellis [2000] 1 NZLR 513 (CA) at [12]-[22] is not entirely unproblematical and a number of issues associated with it were addressed in the written submissions of counsel. In this regard we note that a rather different approach has been taken in the High Court of Australia, see Mallard v R [2005] HCA 68, a case which addressed a section in a Western Australian statute which serves the same function as our s 406 but is rather differently expressed. We see no need to explore these issues as, given the breadth of the reference, we are satisfied that on any tenable view of the law, we have jurisdiction to entertain the primary arguments advanced by the appellant.

The approach to be taken on appeal to fresh evidence arguments

[52] A good place to start is Tipping J’s summary in R v Bain [2004] 1 NZLR 638 (CA) (itself a s 406 case) of the approach to the admissibility on appeal of evidence not available at trial:

[22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.

[23] Whether new evidence is sufficiently credible to be admitted cannot be much elaborated in the abstract. Both inherent and contextual credibility will usually need consideration. Obviously evidence which is wholly incredible cannot avail the appellant, but beyond that it is neither necessary nor desirable to go in this general summary. The criteria of freshness and credibility govern whether the new evidence should be admitted or, putting the matter more formally, whether leave should be granted to admit the evidence. Fresh evidence is not admitted as of right. Its admission is a matter of discretion under s 389 of the Crimes Act. The freshness and credibility criteria are the standard measures which guide the exercise of the discretion. In the end, however, the discretion must be exercised in whatever manner the Court considers will further the overall interests of justice, both to the appellant and to the Crown which represents the community.

[53] The freshness and credibility criteria are generally less rigorously applied in cases which come to the Court via s 406(a), see R v Morgan [1963] NZLR 593 at 596 (CA), R v Dick [1973] 2 NZLR 669 at 670 (CA), R v Collie [1997] 3 NZLR 653 at 657 (CA) and R v Ellis at [18].
[54] In Bain, Tipping J went on to consider the circumstances in which such evidence, if admitted, will demonstrate that a miscarriage of justice has occurred:

[24] If the further evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter. If it does qualify the Court then moves to the next stage of the inquiry, which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.

[25] The Court is therefore engaged in considering what effect the new evidence might reasonably have had on the jury. This focus on the effect of the new evidence on the jury is consistent with the jurisprudence relating to the proviso to s 385(1): see R v McI [1998] 1 NZLR 696 (CA), and the recent decision of this Court in R v Howse [2003] 3 NZLR 767. In that field the Court is concerned with whether the jury (not the Court: see McI at p 711) would nevertheless have convicted had the posited miscarriage of justice not occurred. The need for the appellate Court in a new evidence case to consider its effect on the jury is also consistent with the fundamental point that the ultimate issue whether an accused person is guilty or not guilty is for a jury, not for Judges. The appellate Court acts as a screen through which the further evidence must pass. It is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of applying the proviso, or ruling that the new evidence could not reasonably have affected the result.

[26] It can therefore be seen that there are in substance three screens or controls which the Court applies in a further evidence case. The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial. If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate Court but for a new jury at a second trial which the Court will ordinarily order, unless for some good reason, pertaining to the nature of the new evidence or otherwise, the Court in its discretion decides not to order a new trial.

[27] The third screen or control in a further evidence case subsumes the proviso. If qualifying further evidence might reasonably have led the jury to an acquittal, it would be logically impossible to apply the proviso. It could not then be said that the jury would without doubt have convicted, even if the further evidence had been before it. Hence the purpose of the proviso is built into the third control.

[55] The Bain approach provides some scope for flexibility, cf particularly the remarks of Tipping J at [22]. The ultimate question must be whether there was a miscarriage of justice, and this necessarily involves open-textured considerations. On this approach, the question is whether the trial jury (or perhaps a notional reasonable jury) might reasonably have come to a different verdict had the fresh evidence been before it. It is not for the appellate Court to consider what it in its view the verdict ought to have been, but to reason what the trial jury may have done with the fresh evidence. In R v McI [1998] 1 NZLR 696 at 711, Tipping J said:

The concept of a miscarriage of justice in para (c) looks more to procedure rather than to substantive questions of fact or law. Paragraph (a) is concerned with whether there was enough evidence to support the conviction. Paragraph (b) looks to matters of law. It is apparent, therefore, that para (c) is looking primarily to the integrity of the process by which the conviction was reached: para (a) deals with fact, para (b) with law, and para (c) primarily with process. From this it can be seen that when the proviso speaks of no “substantial” miscarriage of justice, it is saying in a para (c) case that even if something has gone wrong with the process, the Court may, not must, dismiss the appeal if it considers that in substance the conviction was justified.

But it is important to recognise that the Court is not thereby invited to come to its own view about whether the appellant was in fact guilty of the crime or crimes alleged. Rather, the Court is required to assess whether, without the error or deficiencies of process, the jury would still have convicted. It is what the jury would have done without the errors or deficiencies which is the issue, not what the Court thinks of the ultimate merits of the conviction. If, in spite of the errors or deficiencies, the jury would have convicted anyway, there can be no prejudice to the appellant from those errors or deficiencies.

[56] On this approach, there is little scope for the application of the proviso once a s 385(1)(c) ground of appeal has been made out. In the recent Supreme Court decision R v Sungsuwan [2006] 1 NZLR 730, Elias CJ said:

[6] Miscarriage of justice does not arise because of incidental errors or irregularities in the trial, unless they amount to denial of the right to a fair trial contained in s 25(a) of the New Zealand Bill of Rights Act or unless they are significant enough in themselves to cause the appellate Court to consider the verdict to be unsafe. Where the ground of miscarriage of justice under s 385(1)(c) is made out, application of the proviso to s 385 is not likely to be appropriate. It is difficult to envisage that a verdict reached without fair trial or which is unsafe will not amount to a substantial miscarriage of justice.

A similar point was made by Tipping J at [113]-[114], though he also came to this conclusion for the purposes of s 385(1)(a) as well.

[57] We note in passing that somewhat different approaches are taken in England and Australia.
[58] The relevant English cases start with Stafford v Director of Public Prosecutions [1974] AC 878 (HL) and include R v Pendleton [2002] 1 All ER 524 (HL) and R v B(T) [2002] UKHL 2; [2006] 2 Cr App R 3 (CA). On the English approach (which addresses a statutory language which is not precisely the same as s 385) the ultimate question is whether the conviction is safe, a conclusion which the Court of Appeal must address directly and not just through the proxy of how a reasonable jury (or the jury at trial) would have determined the case if the new evidence were before it.
[59] In Weiss v The Queen [2005] HCA 81; (2006) 223 ALR 662 the High Court of Australia was required to address appeal provisions which correspond to our s 385 and in particular the proviso. At [35] the Court said:

The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a “substantial miscarriage of justice has actually occurred.

It went on:

[40] Reference to inevitability of result (or the converse references to "fair" or "real chance of acquittal") are useful as emphasising the high standard of proof of criminal guilt. They are also useful if they are taken as pointing to "the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. But reference to a jury (whether the trial jury or a hypothetical reasonable jury) is liable to distract attention from the statutory task as expressed by criminal appeal statutes, in this case, s 568(1) of the Crimes Act [which is identical to the Crimes Act 1961 s 385(1)]. It suggests that the appeal court is to do other than decide for itself whether a substantial miscarriage of justice has actually occurred.

The statutory task and the proviso

[41] That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.

Because this case addressed the application of the proviso in the context of an appeal which did not turn on new evidence, it is not directly on point. But the drift of the judgment is very much in accord with the English authorities to which we have referred.

[60] Despite the English and Australian decisions to which we have referred, the weight of authority in this jurisdiction is such that we think it appropriate to continue to apply the existing New Zealand principles. But it is right to recognise that the outcome of an appeal is likely (at least in most cases) to be the same irrespective of which approach is taken. This is for two reasons. First, on the English approach, the central role of the jury in the criminal justice system necessarily requires some consideration of how the new evidence would be likely to be considered by a jury, a point illustrated by following passage from the speech of Lord Bingham of Cornhill in Pendleton at [19]:

The test [that the issue depends on how the evidence would have been viewed by the jury] does have a dual virtue to which the speeches I have quoted perhaps gave somewhat inadequate recognition. First, it reminds the Court of Appeal that it is not and should never become the primary decision-maker. Secondly, it reminds the Court of Appeal that it has an imperfect and incomplete understanding of the full processes which led the jury to convict. The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe.

Further, appellate judges addressing how a jury might assess new evidence are likely to do so on the basis of the impression which that evidence makes on them.

[61] It is important to recognise that the primary issue (in New Zealand whether there was a miscarriage of justice and in England whether the conviction is safe) must never be lost sight of and flexibility is necessary. Indeed there may be occasions when, contrary to both Lord Bingham’s comment in Pendleton and indeed the New Zealand authorities, the Court of Appeal may have to become “the ultimate decision-maker”. That this may be so is illustrated by R v Hanratty [2002] EWCA Crim 1141; [2002] 2 Cr App R 30 where DNA evidence available when Hanratty’s posthumous appeal was heard (but not in 1962 when he was tried) showed plainly that he had committed the murder for which he had been hanged. That Hanratty was undeniably guilty was, understandably, held to be relevant to whether his conviction was safe.

The issues we must determine

[62] The reference raises two major issues; first should the conviction for murder be quashed, and secondly, if we do quash the conviction, whether we should direct a new trial.
[63] We will discuss each in turn.

Should the conviction for murder be quashed?

Overview

[64] The arguments advanced by the appellant engage s 385(1)(c). In other words, the appellant’s contention is that there was a miscarriage of justice. The case therefore falls to be determined in accordance with the general principles which apply to appeals against conviction based on new evidence which we have just discussed.
[65] We propose to discuss this aspect of the case by reference to the following headings:

(a) The timing issue.

(b) Admissions allegedly made by Hogan.

(c) The alleged involvement by Hogan in Sherlock’s murder.
(d) The conduct of the defence at trial.
(e) Other issues.

(e) The Crown response.

(f) An overall evaluation.

The timing issue

[66] It is common ground that after the appellant sacked the deceased, there was an incident in which the deceased confronted Hogan with a knife and that this led to Hogan and the appellant chasing the deceased off the vessel, along the wharf and a short distance along the road from the wharf in the direction of Haast. These events were observed by a number of witnesses, including Peter Squires and Brent Gorman.
[67] In the immediate aftermath of the incident, the appellant and Hogan went to premises occupied by Talleys, not far from the wharf. It appears that there was some alcohol there which was available for consumption. Sewell, who had consumed a good deal of alcohol while at Haast, was already there. Brent Gorman went to check the deceased at the request of his skipper. The deceased was in reasonably good shape and made his way back towards the Antares. Brent Gorman went back to tell Peter Squires that the deceased was all right and then he went to Talleys himself.
[68] It seems clear that the deceased did indeed get back on board the Antares. This was confirmed by Peter Squires who saw him get back on board. Later he heard his voice coming from the Antares.
[69] The evidence suggests that Hogan was sent back by the appellant to the vessel to ensure that the deceased did not do any damage. According to Hogan, he went back to the Antares, stood on its rail and heard sounds from inside the deceased’s cabin which he assumed to be associated with the deceased rummaging around inside. On the other hand, the evidence of Peter Squires was that he heard sounds indicating something of an argument between the deceased (who was then apologetic about something) and at least one other person. Being concerned about what was happening (and indeed what had happened earlier), he armed himself with a shotgun and summoned Brent Gorman back from Talleys. They moved the Koromiko off the wharf and anchored it out in the bay.
[70] According to Hogan, not long after he arrived at the Antares the appellant came down and told him to go back to Talleys to get Sewell. He says that he met Sewell as Sewell approached the road end of the wharf and that the two of them walked slowly back to the Antares. On his evidence, when they got back there, the appellant had the engine running. The appellant then took the Antares off the wharf and headed out of Jackson’s Bay.
[71] Other Crown evidence was to the effect that two men (or sometimes three men) returned to the Antares shortly before it departed.
[72] On the account of events given by Hogan there was only a limited amount of time available for the appellant to attack and immobilise the deceased. It could only have taken a few minutes, at the most, for him to walk to the shore end of the wharf, meet Sewell there, and for both men to return from there to the Antares. Further, on Hogan’s evidence, the total time that would have elapsed between the deceased being left in the ditch and the Antares being taken off the wharf would only have been in the order of a quarter of an hour or so.
[73] It is fair to say that there are a number of difficulties with these timings:

(a) Virtually all other witnesses had a much greater elapse of time between the deceased being left in the ditch and the Antares departing from the wharf, normally in the order of one and half to two hours or more.

(b) Hogan’s evidence was not a good fit with the evidence given by Peter Squires or Brent Gorman. Their evidence, when considered in the context of other evidence in the case, suggests that Hogan got onto the vessel and was engaged in a discussion in the nature of an argument with the deceased.

(c) The evidence as a whole strongly suggests that the motor of the Antares was not running during the events which occurred in the evening of 13 February. If neither the motor nor the genset were running, it would have taken the appellant around forty minutes to start the motor. If the genset was running (perhaps to provide electricity for the socialising which occurred in the galley after the crew returned from Haast), it would still have taken around 20 minutes to start the motor. But on Hogan’s narrative, insufficient time would have elapsed between him leaving the appellant beside the Antares and its departure from the wharf to allow the motor to be started (let alone to allow that to happen and the appellant to have also assaulted and tied up the deceased).

[74] Mr Eaton made much of these timing issues. He suggested that the evidence as a whole pointed to Hogan returning to the vessel, arguing with the deceased on the vessel (with the deceased’s remarks being overheard by Peter Squires) and then assaulting and killing or immobilising the deceased.
[75] It is clear that the evidence does not exclude the possibility that Hogan had the opportunity to assault, immobilise and/or kill the deceased, and in the end Ms Hastie, for the Crown, accepted that this was so. Further, it is clear (as indeed it was at the appellant’s trial) that Hogan’s timings simply could not be right.
[76] On the other hand, the evidence as a whole is not inconsistent with the appellant having had the opportunity to assault and immobilise the deceased. Mr Eaton, for the appellant, accepted in the course of argument that this was so. The only evidence that the appellant was alone on the vessel for a few minutes came from Hogan. Since that evidence did not allow sufficient time for the motor to be started, it cannot be right. If one looks at the case from the premise that Hogan was a witness of truth but that his timings were astray, the time which must have elapsed between Hogan leaving the appellant at the Antares and Hogan and Sewell returning to the Antares with the motor running would provide ample time for the appellant to have acted in the way alleged by the Crown. We suspect that this is the basis upon which the jury found the appellant guilty of murder and it also explains the comments made in the judgment of this Court in the first appeal to which we have already referred as to the jury having accepted the evidence of Hogan in its essentials.
[77] Before us, Mr Eaton raised a different issue and one which had not been explicitly put forward at trial or on the appeal. He maintained that Hogan’s overall evidence as to timing was deliberately untrue and that Hogan, throughout, had been anxious to give an account of events on which he had no opportunity to kill the deceased. So he argued that Hogan had lied as to the timings and that it would be open to inference based on those lies that Hogan had murdered the deceased.
[78] This line of reasoning proceeds on the assumption that Hogan’s evidence as to timing was a lie and that it is legitimate, in the context of this case, to reason backwards from it.

Admissions allegedly made by Hogan

[79] We have received a large number of affidavits which refer to admissions made by Hogan as to his role in the death of the deceased.
[80] The alleged admissions do not follow any particular pattern. Some were made before trial and others after trial. Some of the admissions attributed to Hogan are broadly consistent with his evidence at trial. Others involve variations on that evidence in which Hogan allegedly claimed a greater involvement than he had acknowledged at trial but nonetheless still implicated the appellant in the murder. Other alleged admissions, however, are to the effect that Hogan was solely responsible for the murder. Even these admissions are not consistent. Some involve the assertion that Hogan shot the deceased while others involve the claim that he either beat the deceased to death or threw him overboard while he was still alive. There was some evidence at trial, supplemented now by further affidavits, suggesting that a pearl handled revolver was on board the vessel. As well, it is common ground that the appellant had a rifle on board. On the other hand there is no evidence to suggest that anyone in Jackson’s Bay heard a shot being fired on 13 February 1994.
[81] Looked at individually, some of these affidavits are of limited significance, either because the admissions are consistent, at least broadly, with Hogan’s trial evidence or for particular reasons associated with the deponents. Further, there is “a more of the same” quality to the evidence as the jury had the benefit of the statement made by Sherlock and the evidence of Barr to the effect that Hogan had confessed to them and was well aware that Hogan had given at least two false statements to the police. Some of the witnesses could perhaps have been located by the defence (given connections between them and friends of the appellant) and Ms Hastie for the Crown argued that their evidence was not relevantly fresh, a point which in the end was rightly not pressed firmly.
[82] While we accept that there are credibility issues associated with some of the deponents that are apparent on the material we have, it is significant that none of the witnesses were called for cross examination. In that context, we do not see how we could fairly conclude that the new evidence in question is insufficiently credible to be material to the miscarriage of justice issue.
[83] The cogency of the new evidence involves two issues.
[84] In the first place, the new evidence further diminishes Hogan’s credibility. It is true that two admissions allegedly made by Hogan were in evidence before the jury (being the admissions referred to in Sherlock’s statement and in the evidence of Barr). And the jury also knew that Hogan had initially lied to the police. But at trial, the Crown was able to persuade the jury to find the appellant guilty notwithstanding these difficulties. In the case of Sherlock, the Crown prosecutor addressed strongly, along the lines that the jury did not know anything about Sherlock or how reliable he was and that there was a risk that if the jury gave too much weight to his statements a real injustice might occur. Barr’s evidence at trial was the subject of strong challenge (based primarily on variations between his evidence and what he had told the police) as a result of which the prosecutor felt able to urge on the jury the proposition that he had proved to be inconsistent and unreliable. It was suggested that the best solution “was to put Mr Barr’s evidence to one side”. It is difficult to see how the Crown could have dealt so easily with the sheer volume of evidence now available to the appellant as to admissions apparently made by Hogan which are not consistent with his evidence at trial.
[85] The other aspect of cogency which was much relied on by Mr Eaton, is that the admissions are inculpatory of Hogan and that a number of them are exculpatory of the appellant. When these admissions are considered in light of the evidence that Hogan himself had an opportunity to murder the deceased (an issue which was not really explored at trial) they necessarily raise the question of whether it is reasonably possible that Hogan rather than the appellant murdered the deceased.
[86] The evidence, other than that given by Hogan, does not exclude the possibility of him having had an opportunity to murder the deceased. There is also the reality that the evidence generally is consistent with him having been on the boat and interacting with the deceased at what may have been the relevant time.
[87] Hogan has sworn an affidavit in which he has explained the admissions attributed to him. It may be that a jury would accept Hogan’s explanations of the alleged admissions attributed to him, or alternatively might conclude that if Hogan had made the admissions alleged, they were simply in the nature of boasts and did not detract from the truthfulness of his evidence. But, on the state of the evidence before us – which has not been the subject of cross examination - it would not be appropriate for us to reach a conclusion to this effect.

Alleged involvement by Hogan in Sherlock’s murder

[88] The arguments advanced on behalf of the appellant on this issue come down to the following propositions:

(a) Sherlock made allegations to the police which implicated Hogan in the death of the deceased and Sherlock was concerned that Hogan might kill him.

(b) On 25 March 1995, shortly before the depositions hearing into the charge of murder against the appellant, Sherlock was murdered.

(c) Nigel Johnstone (who was later found guilty of Sherlock’s murder) has now sworn an affidavit in which he departs substantially from the case which he ran at trial and on appeal in that he now admits that he was with Sherlock at the time he was murdered but claims that the murder was carried out by a man called Gregory Iverson.

(d) There is some other general evidence as to Johnstone and Iverson being in Sherlock’s company prior to the murder. Subsequent to the murder, Iverson was in possession of Sherlock’s car and at Johnstone’s trial he was a Crown witness.

(e) Hogan has made some admissions which indicate, either expressly or by implication, that he put Iverson up to the murder of Sherlock. As well, there is some limited evidence to the effect that Iverson has made admissions.

[89] Iverson has sworn an affidavit in response in which he denies any involvement in Sherlock’s death. He also denied knowing Hogan. Further, Iverson denies having made any admissions. Hogan has also denied any involvement in the murder of Sherlock and in particular has denied that he procured Iverson to murder Sherlock.
[90] Ms Hastie challenged the relevance of the evidence relating to the death of Sherlock. She sought to maintain that the arguments advanced by Mr Eaton lay outside what was contemplated by the Order-in-Council and that, in any event, an attempt to implicate Hogan in the murder of Sherlock necessarily would fall foul of the collateral issues rule.
[91] Mr Eaton’s response was that some of the affidavit material relied on in relation to the murder of Sherlock is specifically referred to in the Order-in-Council and that the terms of the Order-in-Council, in any event, are broad enough to permit consideration of this aspect of the appellant’s case.
[92] The collateral issues rule is not entirely easy to apply. In practice, it tends to involve a degree of discretion. In proceedings addressed to whether the appellant is guilty of the deceased’s murder, it would not be practicable to engage in a lengthy and detailed analysis of the question whether Hogan is guilty of Sherlock’s murder. On the other hand, given the case which the appellant has signalled through Mr Eaton, it would be difficult at a retrial of the appellant to exclude all evidence associated with this topic. For instance, if it were really the case that Hogan was responsible for the murder of Sherlock and that this was associated with the statement made by Sherlock to the police in September 1994, this might tend to suggest that Hogan’s alleged admissions to Sherlock were true.
[93] For present purposes, we see no need to evaluate the evidence in relation to this aspect of the case given our conclusions in relation to other aspects of what is before us.

The conduct of the defence at trial

[94] Mr Eaton was critical of the way that the appellant’s defence was handled at his trial. His primary criticism was that defence counsel did not unequivocally advance the proposition that Hogan had murdered the deceased. There were a number of aspects to this criticism: defence counsel did not put it to Hogan that he had killed the deceased, defence counsel did not explore the timing issues associated with Hogan’s opportunity to kill the deceased, defence counsel did not fully exploit Sherlock’s statement and Barr’s evidence as to admissions made by Hogan, defence counsel did not specifically advance the contention that the argument on the Antares which Peter Squires overheard involved Hogan and the deceased, defence counsel did not accuse Hogan and Sewell of collaborating, and finally defence counsel did not suggest that Hogan was involved in the murder of Sherlock.
[95] We made it clear to Mr Eaton that we would expect criticisms of counsel’s performance to be accompanied by a waiver of privilege and no such waiver was provided. Mr Eaton therefore shifted the focus of his argument so that it became in essence an analysis of how a trial might be conducted with the advantage of the new evidence. Fairness to the appellant’s former counsel requires us to reiterate the difficulties that former counsel faced in conducting a defence on the affirmative basis that the Hogan was the murderer given the appellant’s own June 1994 statement to the police and in the absence of any sworn evidence from the appellant at trial.
[96] That said, it seems likely that if all of this additional evidence was available at trial, the defence would have been conducted differently. At trial, defence counsel had no legitimate basis for alleging to Hogan that he was responsible for the murder of Sherlock but an evidential basis for advancing that proposition is now available. Counsel did, of course, have Sherlock’s statement and Barr’s evidence as to admissions allegedly made by Hogan of having shot the deceased. But there were difficulties with the death by a shooting theory as no-one at Jackson’s Bay heard a shot. In the end, the Crown prosecutor was able to brush aside the significance of that evidence. If the substantial body of evidence to the effect that Hogan had made admissions inconsistent with his narrative at trial had been available, defence counsel would probably have had no choice but to go for the theory that Hogan was the murderer and take the risk that the jury might conclude that if the appellant was not the murderer he was an accessory after the fact to murder.

Other issues

[97] A number of other issues were raised in the course of the argument. Some were purely factual. Mr Eaton noted that Hogan wound up with the deceased’s knife, that is the knife which was taken off him by the appellant and the deceased just off the end of the wharf in Jackson’s Bay. Indeed he was later to provide that knife to the police. This raises a question as to how this knife came to be back on the Antares. Other questions involve issues of principle, particularly as to the processes associated with the giving of immunities to Hogan and Sewell (in particular the extent to which the police and Invercargill Crown Solicitor disclosed to the Solicitor-General evidence directly implicating Hogan in the murder), remarks made by the Crown Solicitor to the jury as to the practical impact of the immunities on possible motives to lie for Hogan and Sewell, and also as to the impact of the reward which was ultimately made available to Hogan and Sewell. On this last point we note that despite Sewell expressing at trial a lack of interest in the reward, he was, nonetheless, content to accept payment from the Crown after the appellant’s first appeal was dismissed.
[98] Given the conclusions we have reached in other aspects of the case, there is no requirement for us to discuss these issues in any detail.

The Crown response

[99] For the Crown, Ms Hastie stressed the weaknesses in the appellant’s June 1994 statement, the evidence of Sewell which has not been directly impeached by the new evidence, the concerted false stories told by the appellant, Sewell and Hogan to the police and some associated evidence which was consistent with the appellant being responsible for co-ordination of these stories. As well, on the unchallenged evidence of Sewell (which is supported by witnesses who observed the unsteady course of the Antares after it left the wharf at Jackson’s Bay), the appellant gave him the helm shortly after the Antares left the wharf, despite Sewell being very much the worse for alcohol and in no fit state to steer the vessel. This fits in closely with Hogan’s narrative of what happened after the vessel left the wharf. Sewell’s evidence as to a missing long line anchor was unchallenged.
[100] Further, the appellant’s own position is that he stands by the statement he made in June 1994. In June 1999 he swore an affidavit (associated with his petition) to that effect. For the reasons already given, we do not regard that statement as credible. As we have already indicated, it is not plausible to imagine that Hogan could have murdered the deceased without the appellant’s knowledge. If Hogan truly had murdered the deceased, one would expect the appellant to have explained at trial, in chapter and verse, just how it had happened.
[101] In the context of the case as a whole, the appellant’s failure to contradict Hogan’s evidence with a plausible alternative left Hogan’s attribution of guilt to him unchallenged in the sense explained by Abbott CJ in R v Burdett (1820) 4 B & Ald 95; 106 ER 873 at 161-62; 898 (KB):

No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction; can human reason do otherwise than adopt the conclusion to which the proof tends?

The logic underlying these remarks is represented in New Zealand by the line of cases of which Trompert v Police [1985] 1 NZLR 357 (CA) is perhaps the best and most authoritative illustration. Further, this logic remains available to criminal courts despite the enactment of the New Zealand Bill of Rights Act 1990, see R v Gunthorp and others [2003] 2 NZLR 433 (CA) at [142]-[143] and the discussion in Rishworth and others The New Zealand Bill of Rights (2003) at 654-656. This logic is, in turn, related to the reasoning which, in certain circumstances, permits a trier of fact to draw an adverse inference where a defendant has lied, see R v Toia [1982] 1 NZLR 555 (CA).

[102] An associated point is that there has been a shift in the way in which the defence was conducted at trial and before us. In this respect, the remarks made by Tipping J in Bain at [22] are apposite.

Our evaluation

[103] We are satisfied that we should quash the appellant’s conviction for murder. The reality is that the new evidence casts major doubt on the reliability of Hogan’s evidence and, as well, provides an evidential basis for the proposition that Hogan murdered the deceased. In those two respects the new evidence is highly cogent. As we have noted already, we are not in position to dismiss the new evidence as not being credible.
[104] It follows that we do not see the considerations referred to in [99] – [102] as controlling. But we should briefly explain why:
[105] In those circumstances, the conviction must be quashed.

Should there be a new trial?

[106] Section 385(2) of the Crimes Act provides:

(2) Subject to the special provisions of this Part of this Act, the Court of Appeal ... must, if it allows an appeal ..., quash the conviction and in its discretion direct a judgment and verdict of acquittal to be entered, or direct a new trial, or make such other order as justice requires.

[107] This gives us, in the circumstances of this case, three options. We can
[108] On the material available, we would not be prepared to enter a judgment of acquittal. There remains a credible case against the appellant which our judgment has not disposed of. If there were to be a retrial, it would be open to a jury to find the appellant guilty.
[109] In the ordinary case where an appeal against conviction is allowed, the Court customarily directs a new trial. But there are a number of factors which point against that course in this case:
[110] We recognise the difficulties in leaving the case against the appellant unresolved. The underlying issue is extremely serious. A young man has died. There is a clear public interest in having a conclusive determination by a jury of the allegations made against the appellant. Further, despite a number of witnesses having died, the two key protagonists, the appellant and Hogan, are still alive. Statements (or indeed the transcripts of evidence) of the witnesses who have since died could be placed before the jury. So we have given anxious consideration to whether we should direct a retrial and leave the practicalities of conducting such a trial to be determined by the prosecution.
[111] In the end we have decided the considerations referred to in [109] are decisive. We are persuaded that a retrial after this length of time would not be just. In reaching this conclusion we have had regard to the considerations referred to in R v Saunders (1973) 58 Cr App R 248, Reid v R [1980] AC 343 at 349-350 (PC) and Dyer v R (2002) 210 CLR 285 at 312-317 per Kirby J (dissenting).

Disposition

[112] We quash the appellant’s conviction for murder. We do not direct a retrial but instead stay permanently the proceedings against the appellant.

REASONS OF HAMMOND J

[113] I agree with the President that this appeal should be allowed; that Mr Haig’s conviction should be set aside; and that we should not direct a retrial, but rather that we should enter a stay against a further prosecution.
[114] This is generally for the reasons given by the President. I emphasise that, in my view, the critical factor is that Mr Hogan’s evidence has now been shown to be utterly unreliable. The Crown has always accepted that, without his evidence, a conviction cannot stand in this case. The conviction, as matters now stand, is not safe.
[115] There is however one issue on which I wish to make some observations. These in no way detract from the outcome of this appeal, but they are important in their own right. These observations go to any obligation on Mr Haig to “speak out” as to his involvement in this affair, for the purposes of this appeal.
[116] The Crown, somewhat obliquely, seemed to suggest in its submissions that, in all the circumstances, Mr Haig had an obligation at the time of the trial, or somehow needed to speak out now as to what part, if any, he had in relation to Mr Roderique’s death.
[117] The President therefore addressed this issue in his judgment (see [100]-[105]). He referred to cases such as R v Burdett (1820) 4 B & Ald 95; 106 ER 873, and Trompert v Police [1985] 1 NZLR 357 (CA). The President disposes of any such “obligation” in this case, by saying that there are good reasons why the Trompert principle ought not to operate against Mr Haig in this particular instance.
[118] I agree with those reasons, but my objection to the Crown’s argument runs much deeper than that. The prospect that an appellant should ever be required to “speak out” on a miscarriage appeal (whether under s 385 or s 406(a) of the Crimes Act 1961) is, I think, quite wrong in principle.
[119] We here of course enter the choppy (many would say “stormy”) waters of the right to silence. The conventional answer is that right from the outset of a criminal investigation a suspect is not obliged to answer questions when interrogated by the police - or for that matter others - when charged with investigating offences. The burden remains on the Crown, from beginning to end. The defence has no obligation. What flows from this at common law is that a court or jury may not draw an adverse inference from a defendant’s failure to answer questions or put forward an explanation. There are then the further consequences at common law that (a) the defendant may not generally be compelled to reveal his defence before a trial, and (b) there are no circumstances in which the defendant can be compelled to give evidence.
[120] On closer analysis the so-called “right to silence” is not a unitary right. Rather, as Lord Mustill said in Director of SFO ex p Smith [1993] AC 1 at 30 it refers to “... a disparate group of immunities, which differ in nature, origin, incidence and importance, and also as to the extent to which they have already been encroached upon by statute”. That said, in working terms, it is the privilege against self incrimination (recognised in the New Zealand Bill of Rights Act 1990, s 25(d)) and the rules relating to the burden of proof on which the “right” principally rests.
[121] To say that there has been a “debate” over the right to silence in recent years would be to understate the force of the views held on both sides of this discourse.
[122] The proponents of substantially watering down, if not doing away with altogether, the “right to silence” have formidable authority on their side. No less than Professor Rupert Cross in 1970 told the annual gathering of law teachers in England that the right to silence is “a sacred cow obstructing the operation of common sense” (“The Right to Silence and the Presumption of Innocence - Sacred Cows or Safeguards?” 11 (1970) JSPTL 66). Three years later he wrote that the rationalisation of law by getting rid of this bugbear, “would spare the judge from talking gibberish to the jury, the conscientious magistrate from directing himself in imbecile terms and the writer on the law of evidence from drawing distinctions absurd enough to bring a blush to the most hardened academic face” (“The Evidence Report: Sense or Nonsense - A Very Wicked Animal Defends the Eleventh Report of the Criminal Law Revision Committee” (1973) Crim LR 329 at 333).
[123] What Professor Cross had in mind, amongst other things, was the subject matter of a famous Punch cartoon many years ago, relating to a QC’s son found in a yard with a cricket bat, and who was accused of breaking a nearby window with a cricket ball. There were no witnesses to the actual incident. The lad said, “The window is not broken. If it is, I did not break it. If I did, it was an accident”.
[124] The (then) senior Law Lord, Lord Bingham of Cornhill, has said that in his view the recent changes, by statute, to the law of England in this subject-area:

... [were] a sensible change ... because it relieved Judges of the need to tell jurors things that most of them thought were nonsense. But there we are - I am not suggesting for a moment there is any sort of received view on this question. Some people still think the one, some still think the other. The court in Strasbourg is pretty unhappy about anything which infringes what they regard as the right of a citizen simply to say, well, I am not answering any question at all ... .

(Susskind (ed) The Susskind Interviews: Legal Experts in Changing Times (2005) at 103.)

[125] It will be apparent from this that the main argument deployed for change is essentially a pragmatic one. The innocent, or so it is said, have no need for the right to silence. Rather, it is assumed, it is actually experienced and sophisticated criminals who exercise and benefit from the exercise of the right. Crime is a serious business, and criminal trials are not some kind of game. Overall, the interest of society is served by the conviction of the guilty, and in other ways the legitimate interests of suspects and defendants are now safeguarded to an extent which calls for some adjustment to the balance between the prosecution and the defence.
[126] With the very greatest of respect, acknowledging the undoubted “political” appeal of the Cross argument, I very much doubt the empirical soundness of it. In Northern Ireland and in Singapore the changes to the law relating to the right of silence do not seem to have been particularly effective. And the Runciman Royal Commission which looked closely into the exercise of the right during police interrogation found the right to silence to be exercised in only a minority of cases, and most significantly where the potential charge is of a very serious nature. By far the majority of people who exercise the right, plead guilty at trial or are convicted following trial (see Leng The Right to Silence in Police Interrogation: A Study of some of the Issues Underlying the Debate (Royal Commission on Criminal Justice Research Study No. 10 1993)). In short, the pragmatic argument for change has not demonstrably been borne out in practice.
[127] There is an even more important point for present purposes. Where the right has been trenched upon, it has been done by statute (as, for instance, in the Criminal Justice and Public Order Act1994 (UK)). In my view, it certainly should not be trenched upon by Judge-made doctrine, so deep and fundamental are its roots in the common law. I remain deeply troubled by any incursion into this fundamental principle, without statutory authorisation.
[128] To the extent that the Trompert line of cases have allowed some slippage, I think it is not so much that there has been a “conservative” judicial attitude as the President has suggested; rather, it is my appreciation that Trompert has largely found its home in summary proceedings. To the extent that there has been an incursion in New Zealand law it certainly should not, in principle, extend at all to a case such as the present. And even if the orthodox police court view is taken of Trompert, was there really a prima facie case against Mr Haig, on the evidence now before the Court?
[129] It follows, in my view, that this point should not have even got off the ground on the appeal, even though it has been dismissed, on the facts of this case, by the President.
[130] As to authority on the issue of whether “silence” adds anything at the appeal level, so far as my limited researches have been able to extend for the purposes of this appeal, there appears to be some division of opinion elsewhere in the British Commonwealth on the point.
[131] In Corbett v The Queen [1974] 42 DLR (3d) 142 (SCC) there was a murder appeal under s 613(1)(a)(i) of the Canadian Criminal Code (“verdict unreasonable or cannot be supported by the evidence”).
[132] In the British Columbia Court of Appeal, Branca JA had said ([1973] 4 WWR 234 at 150-151):

[W]here as here there was evidence of a direct nature which inculpated [the accused] and which the jury accepted as truthful, then this Court may well consider his failure to testify as a factor in disposing of this appeal.

[133] In the Supreme Court of Canada, Pigeon J (for a majority of the Court) said at 145:

Assuming that the correctness of that statement is a question of law that may be considered on this appeal, I can find no reason for disagreeing with it. Section 4(5) of the Canada Evidence Act, R.S.C. 1970, c. E-10, provides that the failure of a person charged “shall not be made the subject of comment by the judge, or by counsel for the prosecution”, it does not prevent the jury from taking the fact into account without being told. No one can reasonably think that a jury will fail, in reaching a verdict, to take into account the failure of the accused to testify, specially in a case like this. This being so, it is a fact properly to be considered by the Court of Appeal when dealing with the question: “Is this a reasonable verdict?”

[134] Laskin J (for himself and Spence J) could not agree. He said at 150:

The reference to failure to testify, if it can have any significance at all on an appeal by an accused, can go only to the dismissal of the appeal on the ground that there was no substantial wrong or miscarriage of justice, a matter that is related not to s. 613(1)(a)(i) but to s. 613(1)(a)(ii) relating to a wrong decision on a question of law. Indeed, in his concluding sentence Branca, J.A., reaffirms what I have said is a mistaken view of the function of an appellate Court under s. 613(1)(a)(i); to say, as he does, that the appeal fails because there is evidence inculpating the accused which was accepted by the jury is to disregard the duty fixed by s. 613(1)(a)(i).

(Emphasis added.)

[135] To my mind, Laskin J has clearly pointed out the circular reasoning of the majority.
[136] I have also noted Avon v The Queen [1971] 21 DLR (3d) 442 (SCC) in which, on another murder appeal, under s 613(1)(b)(ii) of the Canadian Criminal Code (“... substantial wrong or miscarriage of justice”), the Supreme Court of Canada, again by a majority, appear to have allowed of the possibility that a failure to testify at trial may be relevant at the appeal level.
[137] This issue is plainly an important and a very difficult one of principle, which seems not to have been resolved in New Zealand. It ought not to be allowed to go by default.

Solicitors:
Crown Law Office, Wellington


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