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The Queen v Collier [2006] NZCA 264 (20 September 2006)

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The Queen v Collier [2006] NZCA 264 (20 September 2006)

Last Updated: 28 September 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA13/06

THE QUEEN

v

HARLEY VANCE COLLIER

Hearing: 19 July 2006

Court: Glazebrook, Chisholm and Wild JJ

Counsel: M J Callaghan for Appellant
M D Downs for Crown

Judgment: 20 September 2006 at 11am

JUDGMENT OF THE COURT

The appeal, which was pursued only against conviction, is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1] This appeal was brought both against conviction and sentence, but the sentence appeal was abandoned at the outset of the hearing. Having considered the Crown’s submissions on the sentence appeal, Mr Callaghan accepted that there was not the element of "double punishment" which underlay the appeal.
[2] Mr Callaghan advanced the appeal against conviction on three grounds. The first was that the Judge had misdirected the jury on the standard of proof. The second ground challenged a direction by the Judge to disregard evidence given by a prosecution witness, Detective Constable Kingston, of an admission made to her by a man called Newton, and to disregard also that part of Mr Callaghan’s closing address to the jury relating to that admission. The third ground concerned a communication Mr Callaghan received from a juror some months after the trial. We will deal with each of these three grounds in turn, after giving necessary factual background.
[3] We indicated to counsel that we would reserve this judgment until this Court delivered its judgment in R v Wanhalla & Anor. CA321/05 and CA324/05 24 August 2006, which affects the first ground of appeal. Wanhalla was delivered on 24 August. Counsel for the appellant advised on 29 August that he did not wish to make further submissions in light of Wanhalla.

Factual background

[4] The appellant was charged with aggravated robbery. The Crown case was that he and a man called Shiels, wielding firearms or imitation firearms, had robbed a business in Christchurch of $4,000.
[5] Shiels pleaded guilty to being one of the two aggravated robbers. The appellant was convicted of being the other robber, following a jury trial in the District Court at Christchurch in November 2005, Judge Abbott presiding.
[6] On the morning of 26 February 2005, the two sons of the proprietor of Bristol Metals, a scrap metal business, were working in the business’s premises in Christchurch. The two robbers entered the building wearing disguises and carrying what were described as "pirate type pistols". Pointing these pistols at the first son, they demanded money. The second son came in through a door while the first son was leading the robbers toward the safe where the business stored its cash. Both brothers were then forced to lie on the floor while the robbers emptied the safe, making off with $4,000 in cash, and taking a portable phone as they left.
[7] An employee of a nearby business took the number of the getaway car, leading the Police to an address in Christchurch where they found, discarded in a rubbish bag, clothing worn by one of the robbers and, in another rubbish bag, the bank bags which had contained the money stolen from the safe. The appellant’s fingerprints were on the rubbish bag containing the clothing. Shiels’ fingerprints were on another rubbish bag containing the bank bags.
[8] Meanwhile, the appellant, Shiels and Newton had left for Oamaru in the car used in the robbery. That car was owned by the appellant’s girlfriend. Shiels was apprehended in Oamaru. The appellant, who had returned to Christchurch, was later apprehended there. Before his apprehension, but at a time when he knew the Police were looking for him, the appellant told both his girlfriend and his cousin that "he was going to jail", and he also asked his girlfriend to change money for him.
[9] In addition to the evidence from witnesses about the events on the day of the robbery, 26 February 2005, Senior Constable McLachlan gave evidence about a later event. This evidence was about a conversation between the appellant and Shiels which he had overheard during the depositions hearing at the Christchurch District Court on 25 May 2005. Referring, with leave, to his notebook, Constable McLachlan said this:

I have recorded that at 1200 hours there was an adjournment, a conversation between Shiels and Collier re identification by witness Jonathan Steer. Collier "That identification couldn’t have been more positive than that." Shiels "What’s your lawyer going to do about that". Collier "I don’t know how he could have identified me, he only saw me for a few" ... and then I didn’t hear the word that came after that. And at 1558 hours the above entry was shown to Mr Callaghan and then shown to Mr Collier and Mr Collier’s response, "You didn’t hear that either, you made it up", and Mr Callaghan advised me he wont be acknowledging or signing that. And that was the sum total of the entry pertaining to that.

Misdirection to the jury on the standard of proof

[10] Although they are lengthy, it is necessary to set out the parts of a memorandum issued to the jury by the Judge, and of his summing up to the jury, which include the directions challenged in this ground on appeal. In a memorandum which the Judge handed to the jury at the start of the trial, he said this of the onus and standard of proof:

The burden of proving a charge is on the Crown. It is for the Crown to prove a charge.
Conversely, the accused does not have to prove anything. That means that the accused is entitled, and has an absolute right, to elect not to give or call evidence.
The Crown must prove a charge, and the elements of the offence, which is the subject of the charge, to the standard of proof beyond reasonable doubt. In other words, you must be sure of guilt before you can find the accused guilty. If you are not sure of guilt, the verdict must be not guilty.
However, a reasonable doubt means just that. The crown does not have to prove a charge to the point of scientific or mathematical certainty, in other words beyond all doubt.
Furthermore, the Crown does not have to prove every minor or incidental fact, which may arise during a trial. What the Crown must prove beyond reasonable doubt are the elements of the offence, which is the subject of the charge and the involvement of the accused in the commission of that offence. In other words, the Crown must prove the conclusion of guilt.

[11] The directions with which Mr Callaghan takes issue are in the following part of the Judge’s summing up:

[49] As I said on Monday, and as I also summarised in the memorandum, the standard of proof of a criminal charge in this country is known as proof beyond reasonable doubt.
[50] That phrase has no special magic, and it means exactly what it says. Turned around the other way, it means proof beyond a doubt which you, as the jury, as the judges of fact, regard as reasonable in the context of the case.
[51] However, as I said on Monday, another accepted way of expressing the test of proof beyond reasonable doubt is to say that it involves being sure of guilt.
[52] If you are sure of Mr Collier’s guilt, i.e. if you are sure that he was the other person who robbed Bristol Metals on 26 February 2005, then it is your obligation to return a guilty verdict.
[53] Conversely, if you are unsure of Mr Collier’s guilt, if you have a reasonable doubt as to whether the Police have got the right man as the second offender, it is equally your duty to return a not guilty verdict.
[54] However, as I also said in the preliminary memorandum, the phrase "beyond reasonable doubt" does not mean beyond all doubt, i.e. to a point of scientific or mathematical certainty.
[55] At the end of his address to you this morning Mr Callaghan said that you have to be "certain, beyond reasonable doubt" to find Mr Collier guilty. However, the word "certain" should in fact be the word "sure".
[56] As I said on Monday, and as I also outlined in the memorandum, it is important to bear in mind that the principles regarding the burden of proof and the standard of proof apply to proof of the offence in question and to proof of the accused’s involvement in the commission of that offence. In other words, those principles apply to the conclusion of an accused’s guilt in respect of the offence with which he or she is charged.
[57] As a corollary, that means that the Crown does not have to prove every minor or incidental fact which might arise during a trial to that standard of proof beyond reasonable doubt. What the Crown has to prove is the overall conclusion of guilt, to that standard of being sure of it.
...
[62] Between the eleven of you, you have several hundred years of experience of life and people and of human conduct and behaviour. I am not going to attempt to be more definite than "several hundred years", because I might offend some of you or appear to be attempting to curry favour with others of you.
[63] However, the mere statement that, between the eleven of you, you have several hundred years of experience of life emphasises the huge fund of wisdom which you bring to your task as jurors in this case. Although none of you may have ever had any experience, first-hand, second-hand, or third hand, of events of the type about which we have heard during this trial, you nevertheless have a huge amount of knowledge of people – about how people might be expected to behave, how people might be expected to act or react in certain circumstances.
[64] It is that common sense, that knowledge of people, which you are expected to bring to your task as jurors today.

[12] This ground focused on the last sentence of the last paragraph of the Judge’s memorandum. Anticipating the obvious response that the memorandum was overtaken by, or at least needed to be considered together with, the Judge’s summing up to the jury, Mr Callaghan referred also to paragraphs [56] and [57] of the summing up. He contended that those paragraphs took the jury back to the memorandum. Mr Callaghan submitted that the Judge’s use of the phrase "conclusion of guilt" and in particular the word "conclusion" had added another dimension to his direction on what proof beyond reasonable doubt entailed. That added dimension required the Judge to elaborate upon the words "the conclusion of guilt", because such a conclusion can be drawn while there remains a reasonable doubt as to whether the accused had committed the crime charged. A conclusion could be reached because it is more probable than not.
[13] Mr Callaghan submitted that paragraphs [63]-[64] of the summing up compounded the problem, in that they suggested to the jury that they could reach a conclusion of guilt, not upon the evidence in the trial, but upon an expectation of their experiences as to how people might be expected to act or react in certain situations. He suggested that the Judge’s words "might react" weakened the direction of proof beyond reasonable doubt. People act and react upon their emotions and prejudices. Mr Callaghan argued that the Judge’s use of the word "might" was particularly unfortunate. It suggested to the jury that they could reach their verdicts on the balance of probabilities, and not upon proof beyond reasonable doubt.
[14] We do not accept these submissions. They are selective, both as to the Judge’s memorandum and his summing up. Mr Callaghan’s focus on the last sentence of the memorandum overlooks the preceding paragraphs. Those paragraphs contain a clear direction as to the criminal standard of proof and the direction routinely added that the jury must be "sure of guilt". The Judge also directed the jury that a reasonable doubt means just that. If it does, then his explanation that it does not require scientific or mathematical certainty, was unnecessary, if unobjectionable.
[15] If [57] of the summing up took the jury back to the memorandum, then it was to the whole of the memorandum, not just to the one sentence Mr Callaghan focused upon. Paragraphs [62]-[64] are in that part of the summing up in which the Judge was directing the jury as to their ability to draw inferences from facts they found proved. Given that the Crown case was circumstantial, those directions were important.
[16] Toward the end of his elaborate direction about inferences, the Judge said this to the jury:

[83] However, if, in respect of a particular fact which is of significance in the context of your assessment of the evidence, two inferences could be drawn from that fact, one of which is favourable to the accused, and the other of which is unfavourable to him, then you must not draw the inference which is unfavourable to the accused. That is simply because the burden of proving guilt beyond reasonable doubt which rests on the Crown means that the Crown must exclude all reasonable possibilities.

[17] We consider that that is both a correct direction to the jury as to finding facts by inference, and a clear and accurate reinforcement of the standard of proof the jury were to apply.
[18] In Wanhalla this Court ruled that a very similar preliminary memorandum and summing up by the same Judge did not misdirect on the standard of proof. The Judge’s preliminary memorandum included the paragraph primarily challenged by Mr Callaghan in this appeal. Moreover, the summing up appealed in Wanhalla contained the so-called "domestic analogy" which does not feature in this case, and which the Wanhalla Court firmly directed should not be used in future.
[19] Wanhalla, in which three carefully considered and concurring judgments were delivered by a five strong permanent Court, strongly reinforces our view that Judge Abbott did not misdirect as to the standard of proof.
[20] We dismiss the first ground of appeal.

Judge’s direction to jury to disregard hearsay evidence of Newton’s admission and counsel’s address about it

[21] Evidence was given for the prosecution by a witness called Skinner. Skinner had seen two people arrive in a car outside Bristol Metals’ premises at the time of the robbery and act in what he thought was a suspicious way. His evidence was that the driver of the car was a Caucasian – lighter skinned than the passenger.
[22] At the end of the prosecution case Detective Constable Susan Kingston gave evidence. She was the officer in charge of the robbery investigation. In cross-examination by Mr Callaghan, the following exchange occurred:

Q. (Newton) admitted that he had taken part in this robbery didn’t he?
A. Yes he did, but I do not believe his evidence.

[23] Crown counsel re-examined on the point:

Q. Just in relation to Mr Newton, you didn’t quite finish your explanation as to why you didn’t believe his story, can you tell us about that please?
A. Well clearly from the witnesses involved they clearly described two Maori offenders, or Polynesian with dark skin, Mr Newton is Caucasian with blond hair and he didn’t have the tattoos as described by the witnesses, either.

[24] On the basis of this evidence Mr Callaghan made two points in his closing to the jury. First he reminded the jury that Skinner had said that one of the two men he had seen was Caucasian, and he also reminded the jury that Detective Kingston had told them that Newton was Caucasian. Secondly, he emphasised that the Detective had told the jury that Newton had admitted to her that he was the second robber.
[25] In relation to these points, Judge Abbott summed up in the following way:

[147] The next matter relating to the evidence which I must discuss with you arises from Mr Callaghan’s cross-examination of Det Const Kingston yesterday.
[148] Mr Callaghan’s first question to Det Const Kingston was to the effect that, when Mr Newton was spoken to he admitted that he had been involved in the robbery, to which Det Const Kingston gave an affirmative response.
[149] It is not surprising that one of the questions which you asked at the end of the day yesterday was whether Mr Newton had been charged with any offence relating to the actual robbery. I can answer that question in the negative, i.e. Mr Newton has not been charged with any offence relating to the actual robbery.
[150] The problem with the question which Mr Callaghan asked, and to which Mr Poore did not object, is that the answer put before you evidence of what someone who has not been called as a witness has said out of court, for the purpose of proving or at least adding veracity to that out of court statement. In those circumstances, that evidence was inadmissible, and the question should not have been asked.
...
[152] In the first, when Mr Callaghan was discussing Mr Skinner’s evidence, and in particular his acknowledgment that he initially said that one of the two people who he saw acting suspiciously was Caucasian, Mr Callaghan noted that Mr Newton is Caucasian and that he had said to the Police that he was the other party to the robbery.
...
[154] I direct you very firmly that you must disregard the evidence which Det Const Kingston in effect gave in response to Mr Callaghan’s first question in cross-examination.
[155] In short, any purported admission by Mr Newton regarding his involvement in the robbery is not before you in admissible form, and you must disregard that evidence.

[26] Mr Callaghan submitted that unfairness to the appellant, tantamount to a miscarriage of justice, resulted from these directions. He developed this submission in four ways. First, although he accepted that Detective Kingston’s evidence of Newton’s admission to her was hearsay, Mr Callaghan made the point that Crown counsel had not objected, indeed had re-examined on the point. And the Judge had not intervened. Mr Callaghan therefore proceeded thinking that no objection would be taken to his addressing on this point.
[27] Secondly, he submitted that evidence is admissible if it is within the established exceptions. He referred particularly to the general residual exception which turns on the three distinct requirements of relevance, inability (to call the relevant witness), and reliability: R v Manase [2001] 2 NZLR 197 (CA), at [30] - [31]. Newton’s evidence was relevant, and there was nothing to suggest it was not reliable.
[28] Third, and as to inability to call Newton, if the Detective’s evidence of Newton’s admission to her had been ruled out, the defence could and would have called Newton "to say in evidence in chief that he had attended at the Police Station and made an admission that he had committed the robbery".
[29] Fourth, the Judge was duty bound to advise counsel for the accused that he should not address on the Detective’s evidence of Newton’s admission, which had gone uncontested by either the Crown or the Court. By not intervening when the evidence was given, and not raising it with counsel before the addresses, the Judge had led counsel to believe it was in order to address as Mr Callaghan did about Newton’s admission, effectively putting it to the jury that Newton had admitted to the Police that he was the other robber, so the jury should find the appellant not guilty. The Judge’s direction to the jury in summing up that they should disregard both the Detective’s evidence of Newton’s admission and counsel’s closing points based on it, was both unfair and damaging to the appellant.
[30] Although this argument has initial attraction, it does not bear more careful analysis. First, Mr Callaghan’s question to Detective Kingston elicited inadmissible hearsay. None of the three Manase requirements of relevance, reliability and inability to call Newton were met. The fact of Newton making the admission is strictly irrelevant. The truth of the admission was a different matter. There was nothing to establish the reliability of the admission. As Mr Downs submitted, it was "a bald hearsay remark, bereft of context ...". False admissions, made for any number of reasons, are legion. Above all, Newton could have been called. We accept Mr Callaghan’s point that, having confirmed he had made the admission to Detective Kingston, Newton could have invoked privilege against self-incrimination. But that serves only to reinforce the point that the hearsay was irrelevant: it was only of the fact of the admission. Mr Downs suggested that the appellant and Mr Callaghan had assumed that there was a tactical advantage in not calling Newton. He asked: why else do it in this way? He submitted – we think with considerable force – that the defence approach said a good deal about the veracity of Newton’s ‘admission’.
[31] Second, although it may have been preferable for the Judge to rule out the inadmissible hearsay at the time Mr Callaghan elicited it from Detective Kingston, we do not think the Judge had a duty to do that. Mr Callaghan knew – or certainly he ought to have known – that he was eliciting inadmissible hearsay. The only purpose of the evidence can have been to suggest to the jury – as Mr Callaghan did - that Newton was the other robber and therefore that the appellant was not. The defence were wanting to rely, not on the fact of the admission, but on the truth of it.
[32] Without seeking any ruling or guidance from the Judge, Mr Callaghan then addressed on the admission. Mr Downs submitted that "In a sense, the complaint is that trial counsel was not allowed to get away with it". That is a fair point. Reduced to its fundamentals, Mr Callaghan’s submission is that the Judge, in the circumstances, had a duty to allow the defence to rely on evidence which the defence ought never to have elicited, because it was inadmissible hearsay. We think the Judge’s duty was to direct the jury, as he did, that they were not to rely on that inadmissible hearsay.
[33] We mention two other points we have factored in in assessing whether there was substance in Mr Callaghan’s submission that there had been unfairness to the appellant, and damage to his defence at trial, such that justice had miscarried. The first point is that Newton’s admission was very much a second plank of the defence case. The nub of the appellant’s defence, as the Judge summed it up to the jury, was:

"... that the Crown has been unable to prove beyond reasonable doubt that Mr Collier was the other robber."
([188] of summing up)

[34] Second, the Judge summed up on the admissible evidence relating to Newton. Summarising the eight major points of the defence case, the Judge said this about Newton:

[192] Thirdly, Mr Skinner, who observed two men behaving suspiciously in the general area on the morning of 26 February, described one of the two men as Caucasian, and that person could well have been Mr Newton, who of course subsequently travelled to Oamaru with both Mr Shiels and Mr Collier.

[35] We do not accept that the Judge’s directions on this aspect of the trial resulted in a miscarriage of justice. This second ground on appeal fails and is dismissed.

The juror point

[36] Some five months after the appellant’s trial, a juror contacted Mr Callaghan. Mr Callaghan dealt with the contact in an entirely proper way, promptly advising the Crown Law Office which, in turn, arranged for a senior Police Officer to make some inquiries.
[37] It is not appropriate to include in this judgment details of the juror’s communication, of the inquiries which were made as a consequence, or of the outcome of those inquiries. That is because the only suggestion of some ‘irregularity’ (our word, not the juror’s) comes from matters intrinsic to the jury’s deliberations. In other words, it arises from what the juror said had occurred in the course of the jury’s deliberations. Any inquiry into the jury’s deliberations would cut across the rule, fundamental because it is essential to the functioning of the jury system, that a jury’s deliberations are secret and are not open to inquiry.
[38] This Court has recognised that that fundamental rule can be departed from for a sufficiently compelling reason: Tuia v R [1994] 3 NZLR 553 (CA) at 556. We therefore add that, having considered the material made available to us, our firm view is that no such compelling reason exists here. The situation mentioned by the juror is unremarkable, and is open to entirely innocent explanation, including that the juror may have misheard or misunderstood what another juror said in the course of the jury’s deliberations. There is no suggestion that any juror acted upon information other than the evidence in the trial, or that there was any other extrinsic influence upon the jury’s deliberations.
[39] We dismiss this third ground of appeal also.

Proviso to s385(1)

[40] Mr Callaghan made submissions to us about the application of the proviso to s385(1) Crimes Act 1961, in the event we upheld any of the grounds of appeal and found there had been a miscarriage of justice. These submissions relied on the judgments of the Supreme Court in R v Sungsuwan [2006] 1 NZLR 730, particularly remarks by Tipping J at [113] in his separate judgment.
[41] Because the second and third grounds on appeal fail at the s385(1)(c) threshold, we need not consider those submissions.

Result

[42] None of the three grounds on which the appeal against conviction was advanced has succeeded. The appeal against conviction accordingly fails and is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	This appeal was brought both against conviction and sentence, but the sentence appeal was abandoned at the outset of the hearing. Having considered the Crown’s submissions on the sentence appeal, Mr Callaghan accepted that there was not the element of "double punishment" which underlay the appeal.
[2]	Mr Callaghan advanced the appeal against conviction on three grounds. The first was that the Judge had misdirected the jury on the standard of proof. The second ground challenged a direction by the Judge to disregard evidence given by a prosecution witness, Detective Constable Kingston, of an admission made to her by a man called Newton, and to disregard also that part of Mr Callaghan’s closing address to the jury relating to that admission. The third ground concerned a communication Mr Callaghan received from a juror some months after the trial. We will deal with each of these three grounds in turn, after giving necessary factual background.
[3]	We indicated to counsel that we would reserve this judgment until this Court delivered its judgment in R v Wanhalla & Anor. CA321/05 and CA324/05 24 August 2006, which affects the first ground of appeal. Wanhalla was delivered on 24 August. Counsel for the appellant advised on 29 August that he did not wish to make further submissions in light of Wanhalla.

[4]	The appellant was charged with aggravated robbery. The Crown case was that he and a man called Shiels, wielding firearms or imitation firearms, had robbed a business in Christchurch of $4,000.
[5]	Shiels pleaded guilty to being one of the two aggravated robbers. The appellant was convicted of being the other robber, following a jury trial in the District Court at Christchurch in November 2005, Judge Abbott presiding.
[6]	On the morning of 26 February 2005, the two sons of the proprietor of Bristol Metals, a scrap metal business, were working in the business’s premises in Christchurch. The two robbers entered the building wearing disguises and carrying what were described as "pirate type pistols". Pointing these pistols at the first son, they demanded money. The second son came in through a door while the first son was leading the robbers toward the safe where the business stored its cash. Both brothers were then forced to lie on the floor while the robbers emptied the safe, making off with $4,000 in cash, and taking a portable phone as they left.
[7]	An employee of a nearby business took the number of the getaway car, leading the Police to an address in Christchurch where they found, discarded in a rubbish bag, clothing worn by one of the robbers and, in another rubbish bag, the bank bags which had contained the money stolen from the safe. The appellant’s fingerprints were on the rubbish bag containing the clothing. Shiels’ fingerprints were on another rubbish bag containing the bank bags.
[8]	Meanwhile, the appellant, Shiels and Newton had left for Oamaru in the car used in the robbery. That car was owned by the appellant’s girlfriend. Shiels was apprehended in Oamaru. The appellant, who had returned to Christchurch, was later apprehended there. Before his apprehension, but at a time when he knew the Police were looking for him, the appellant told both his girlfriend and his cousin that "he was going to jail", and he also asked his girlfriend to change money for him.
[9]	In addition to the evidence from witnesses about the events on the day of the robbery, 26 February 2005, Senior Constable McLachlan gave evidence about a later event. This evidence was about a conversation between the appellant and Shiels which he had overheard during the depositions hearing at the Christchurch District Court on 25 May 2005. Referring, with leave, to his notebook, Constable McLachlan said this:

[12]	This ground focused on the last sentence of the last paragraph of the Judge’s memorandum. Anticipating the obvious response that the memorandum was overtaken by, or at least needed to be considered together with, the Judge’s summing up to the jury, Mr Callaghan referred also to paragraphs [56] and [57] of the summing up. He contended that those paragraphs took the jury back to the memorandum. Mr Callaghan submitted that the Judge’s use of the phrase "conclusion of guilt" and in particular the word "conclusion" had added another dimension to his direction on what proof beyond reasonable doubt entailed. That added dimension required the Judge to elaborate upon the words "the conclusion of guilt", because such a conclusion can be drawn while there remains a reasonable doubt as to whether the accused had committed the crime charged. A conclusion could be reached because it is more probable than not.
[13]	Mr Callaghan submitted that paragraphs [63]-[64] of the summing up compounded the problem, in that they suggested to the jury that they could reach a conclusion of guilt, not upon the evidence in the trial, but upon an expectation of their experiences as to how people might be expected to act or react in certain situations. He suggested that the Judge’s words "might react" weakened the direction of proof beyond reasonable doubt. People act and react upon their emotions and prejudices. Mr Callaghan argued that the Judge’s use of the word "might" was particularly unfortunate. It suggested to the jury that they could reach their verdicts on the balance of probabilities, and not upon proof beyond reasonable doubt.
[14]	We do not accept these submissions. They are selective, both as to the Judge’s memorandum and his summing up. Mr Callaghan’s focus on the last sentence of the memorandum overlooks the preceding paragraphs. Those paragraphs contain a clear direction as to the criminal standard of proof and the direction routinely added that the jury must be "sure of guilt". The Judge also directed the jury that a reasonable doubt means just that. If it does, then his explanation that it does not require scientific or mathematical certainty, was unnecessary, if unobjectionable.
[15]	If [57] of the summing up took the jury back to the memorandum, then it was to the whole of the memorandum, not just to the one sentence Mr Callaghan focused upon. Paragraphs [62]-[64] are in that part of the summing up in which the Judge was directing the jury as to their ability to draw inferences from facts they found proved. Given that the Crown case was circumstantial, those directions were important.
[16]	Toward the end of his elaborate direction about inferences, the Judge said this to the jury:

[17]	We consider that that is both a correct direction to the jury as to finding facts by inference, and a clear and accurate reinforcement of the standard of proof the jury were to apply.
[18]	In Wanhalla this Court ruled that a very similar preliminary memorandum and summing up by the same Judge did not misdirect on the standard of proof. The Judge’s preliminary memorandum included the paragraph primarily challenged by Mr Callaghan in this appeal. Moreover, the summing up appealed in Wanhalla contained the so-called "domestic analogy" which does not feature in this case, and which the Wanhalla Court firmly directed should not be used in future.
[19]	Wanhalla, in which three carefully considered and concurring judgments were delivered by a five strong permanent Court, strongly reinforces our view that Judge Abbott did not misdirect as to the standard of proof.
[20]	We dismiss the first ground of appeal.

[21]	Evidence was given for the prosecution by a witness called Skinner. Skinner had seen two people arrive in a car outside Bristol Metals’ premises at the time of the robbery and act in what he thought was a suspicious way. His evidence was that the driver of the car was a Caucasian – lighter skinned than the passenger.
[22]	At the end of the prosecution case Detective Constable Susan Kingston gave evidence. She was the officer in charge of the robbery investigation. In cross-examination by Mr Callaghan, the following exchange occurred:

[26]	Mr Callaghan submitted that unfairness to the appellant, tantamount to a miscarriage of justice, resulted from these directions. He developed this submission in four ways. First, although he accepted that Detective Kingston’s evidence of Newton’s admission to her was hearsay, Mr Callaghan made the point that Crown counsel had not objected, indeed had re-examined on the point. And the Judge had not intervened. Mr Callaghan therefore proceeded thinking that no objection would be taken to his addressing on this point.
[27]	Secondly, he submitted that evidence is admissible if it is within the established exceptions. He referred particularly to the general residual exception which turns on the three distinct requirements of relevance, inability (to call the relevant witness), and reliability: R v Manase [2001] 2 NZLR 197 (CA), at [30] - [31]. Newton’s evidence was relevant, and there was nothing to suggest it was not reliable.
[28]	Third, and as to inability to call Newton, if the Detective’s evidence of Newton’s admission to her had been ruled out, the defence could and would have called Newton "to say in evidence in chief that he had attended at the Police Station and made an admission that he had committed the robbery".
[29]	Fourth, the Judge was duty bound to advise counsel for the accused that he should not address on the Detective’s evidence of Newton’s admission, which had gone uncontested by either the Crown or the Court. By not intervening when the evidence was given, and not raising it with counsel before the addresses, the Judge had led counsel to believe it was in order to address as Mr Callaghan did about Newton’s admission, effectively putting it to the jury that Newton had admitted to the Police that he was the other robber, so the jury should find the appellant not guilty. The Judge’s direction to the jury in summing up that they should disregard both the Detective’s evidence of Newton’s admission and counsel’s closing points based on it, was both unfair and damaging to the appellant.
[30]	Although this argument has initial attraction, it does not bear more careful analysis. First, Mr Callaghan’s question to Detective Kingston elicited inadmissible hearsay. None of the three Manase requirements of relevance, reliability and inability to call Newton were met. The fact of Newton making the admission is strictly irrelevant. The truth of the admission was a different matter. There was nothing to establish the reliability of the admission. As Mr Downs submitted, it was "a bald hearsay remark, bereft of context ...". False admissions, made for any number of reasons, are legion. Above all, Newton could have been called. We accept Mr Callaghan’s point that, having confirmed he had made the admission to Detective Kingston, Newton could have invoked privilege against self-incrimination. But that serves only to reinforce the point that the hearsay was irrelevant: it was only of the fact of the admission. Mr Downs suggested that the appellant and Mr Callaghan had assumed that there was a tactical advantage in not calling Newton. He asked: why else do it in this way? He submitted – we think with considerable force – that the defence approach said a good deal about the veracity of Newton’s ‘admission’.
[31]	Second, although it may have been preferable for the Judge to rule out the inadmissible hearsay at the time Mr Callaghan elicited it from Detective Kingston, we do not think the Judge had a duty to do that. Mr Callaghan knew – or certainly he ought to have known – that he was eliciting inadmissible hearsay. The only purpose of the evidence can have been to suggest to the jury – as Mr Callaghan did - that Newton was the other robber and therefore that the appellant was not. The defence were wanting to rely, not on the fact of the admission, but on the truth of it.
[32]	Without seeking any ruling or guidance from the Judge, Mr Callaghan then addressed on the admission. Mr Downs submitted that "In a sense, the complaint is that trial counsel was not allowed to get away with it". That is a fair point. Reduced to its fundamentals, Mr Callaghan’s submission is that the Judge, in the circumstances, had a duty to allow the defence to rely on evidence which the defence ought never to have elicited, because it was inadmissible hearsay. We think the Judge’s duty was to direct the jury, as he did, that they were not to rely on that inadmissible hearsay.
[33]	We mention two other points we have factored in in assessing whether there was substance in Mr Callaghan’s submission that there had been unfairness to the appellant, and damage to his defence at trial, such that justice had miscarried. The first point is that Newton’s admission was very much a second plank of the defence case. The nub of the appellant’s defence, as the Judge summed it up to the jury, was:

[36]	Some five months after the appellant’s trial, a juror contacted Mr Callaghan. Mr Callaghan dealt with the contact in an entirely proper way, promptly advising the Crown Law Office which, in turn, arranged for a senior Police Officer to make some inquiries.
[37]	It is not appropriate to include in this judgment details of the juror’s communication, of the inquiries which were made as a consequence, or of the outcome of those inquiries. That is because the only suggestion of some ‘irregularity’ (our word, not the juror’s) comes from matters intrinsic to the jury’s deliberations. In other words, it arises from what the juror said had occurred in the course of the jury’s deliberations. Any inquiry into the jury’s deliberations would cut across the rule, fundamental because it is essential to the functioning of the jury system, that a jury’s deliberations are secret and are not open to inquiry.
[38]	This Court has recognised that that fundamental rule can be departed from for a sufficiently compelling reason: Tuia v R [1994] 3 NZLR 553 (CA) at 556. We therefore add that, having considered the material made available to us, our firm view is that no such compelling reason exists here. The situation mentioned by the juror is unremarkable, and is open to entirely innocent explanation, including that the juror may have misheard or misunderstood what another juror said in the course of the jury’s deliberations. There is no suggestion that any juror acted upon information other than the evidence in the trial, or that there was any other extrinsic influence upon the jury’s deliberations.
[39]	We dismiss this third ground of appeal also.

[40]	Mr Callaghan made submissions to us about the application of the proviso to s385(1) Crimes Act 1961, in the event we upheld any of the grounds of appeal and found there had been a miscarriage of justice. These submissions relied on the judgments of the Supreme Court in R v Sungsuwan [2006] 1 NZLR 730, particularly remarks by Tipping J at [113] in his separate judgment.
[41]	Because the second and third grounds on appeal fail at the s385(1)(c) threshold, we need not consider those submissions.