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The Queen v Lin [2006] NZCA 296 (19 October 2006)

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The Queen v Lin [2006] NZCA 296 (19 October 2006)

Last Updated: 14 November 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA467/05

THE QUEEN

v

SEN LIN

Hearing: 9 October 2006

Court: Robertson, Williams and Panckhurst JJ

Counsel: P A Williams QC and D C S Reid for Appellant
P K Feltham for Crown

Judgment: 19 October 2006 at 11 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

The trial and its outcome

[1] The appellant and Howard Kao, were jointly charged with the detention, assault and robbery of Shane Young and Shun Yao. All four men are of Chinese extraction. In broad terms it was alleged that a dispute arose between Shane Young and two other Chinese persons with whom he had entered into a commercial transaction. Shane Young considered that he had performed his side of the bargain, but that the other parties to the contract had not.
[2] On 16 June 2003 Mr Young was requested to go to the appellant’s home at 218 Victoria Avenue, Remuera. The reason for the meeting was the unresolved business transaction. The appellant, and his co-accused Howard Kao, were said by the Crown to be associates of the other parties to the transaction.
[3] Mr Young asked Shun Yao to accompany him. On arrival at the address Mr Young said he was confronted by the appellant and a large group of men. They attacked him. Shortly later, Sun Yao was removed from the vehicle in which the two men had travelled to Victoria Avenue, and also set upon. The two were then taken to a basement at the address, further assaulted, robbed and required to complete a document which became an important exhibit at the trial. Eventually the two men were released. Shane Young had sustained significant facial injuries. Shun Yao’s injuries were more superficial.
[4] After a trial in the District Court which occupied three and a half weeks the jury acquitted Howard Kao on all of the seven charges which he faced. The appellant, however, was found guilty of unlawfully detaining, causing grievous bodily harm with that intent and the aggravated robbery of Shane Young and, in relation to the second complainant, Shun Yao, he was convicted of unlawfully detaining him, assault and aggravated robbery.
[5] The appellant was sentenced by the trial Judge, Judge Mathers, to six and a half years imprisonment. The appeal is against conviction.

Basis of the appeal

[6] The notice of appeal set out 24 separate grounds of appeal. Different aspects of the evidence, the trial process, the conduct of the prosecutor, various actions of the jury and elements of the summing-up were the subject of criticism and challenge.
[7] But in the end result the conviction appeal was framed with reference to effectively five separate grounds of appeal. The first was that the verdicts of guilty were "against the weight of evidence", unreasonable and contrary to a proper analysis of the evidence.
[8] The second ground was that the prosecutor in closing the Crown case improperly argued that a defence witness was "pretty well briefed" in relation to the evidence he gave. This observation was criticised as "gross and disturbing", and calculated to inappropriately influence the jury against the appellant (and his co-accused), by imputing to defence counsel that they had briefed the witness to commit perjury.
[9] The third ground was that the trial Judge erred in her summing-up in that the evidence given by the appellant was not mentioned and, thereby, the appellant’s defence was not adequately put to the jury.
[10] The next ground was that members of the jury were guilty of misconduct and prejudicial behaviour such as to indicate a concern that the jury did not concentrate adequately upon the task at hand and did not act in a fair and unbiased manner towards the appellant. Also, members of the jury were said to have allowed their concerns about the duration of the trial to intrude at the expense of the appellant’s right to a fair trial.
[11] Finally, the fifth ground of appeal was that counsel for Howard Kao, the co-accused, introduced inadmissible evidence in cross-examination of a detective, which evidence adversely affected the appellant and improperly influenced the jury in relation to s 66(2) of the Crimes Act 1961. The Judge explained to the jury that the appellant (and his co-accused) were parties to offences committed by other assailants, provided there was a common intention to effect an unlawful purpose and the particular offence was a probable consequence of the assailants’ overall objective. These directions were not criticised, but Mr Williams QC contended that, in light of a question asked by the jury late in their deliberations (directed to s 66(2)), it was apparent that they were focused upon inadmissible evidence from the detective elicited by Mr Mansfield in cross-examination. Thereby, it was said, there was a risk of a miscarriage of justice arising from verdicts based upon s 66(2) when inadmissible evidence had been brought to account in that context.
[12] Although Mr Williams strongly argued that certain of the grounds of appeal were decisive individually, he also urged us to view the grounds cumulatively, and thereby conclude that a miscarriage of justice was demonstrated.
[13] As can be seen the grounds of appeal, even in their final form, challenge the case as a whole. The adequacy of the evidence, the trial process (in relation to prosecutorial and jury misconduct) and the summing-up are all impeached. In these circumstances we think it necessary to first summarise the Crown and defence cases, before turning to the five individual grounds of appeal. Thereby, a context is provided against which the various criticisms may be better assessed.

The Crown case

The complainants’ accounts

[14] Shane Young immigrated to New Zealand in 1997. At the time of trial he was aged 40 years. In New Zealand he met Samuel Tong who, in 2002, became involved in the establishment of a massage parlour. The co-accused, Howard Kao, sought to assist Mr Tong by providing a character reference. Mr Young assisted with the preparation of that reference and thereby met Howard Kao.
[15] Sometime later Mr Tong was instrumental in introducing Mr Young to the appellant. He immigrated to New Zealand in 1997, aged 30 years. Mr Young sold the appellant some electrical items and, as a result, had occasion to visit the appellant’s home address at 218 Victoria Avenue, Remuera.
[16] Arising from this contact in relation to the equipment sale, a business proposition was put to Mr Young. The appellant showed Mr Young a house at another address on Victoria Avenue which was available for removal to enable re-development of the land on which it was situated. Mr Young consulted his friend and landlady, Angel Yao, and agreed to remove the house and relocate it to land at Pakaranga owned by Ms Yao.
[17] On 23 January 2003 the appellant took Mr Young to an office in Newmarket. He introduced Mr Young to David Zhou and Mr Zhou’s wife, Christina Liang. The appellant referred to Mr Zhou as his boss. An agreement for sale and purchase was completed, dated 23 January 2003, in relation to the Victoria Avenue house. The vendor and purchaser were both companies (Mr Young having formed a company for the purposes of the transaction). The agreement was signed by Christina Liang and Shane Young. In lieu of payment of the purchase price of $30,000, Mr Young agreed to provide a Mercedes car in exchange for the house. Removal of the house from the site was to occur by 28 March 2003.
[18] Soon after the agreement was signed Mr Zhou visited Mr Young and uplifted the Mercedes car. Despite inquiries on Mr Young’s part, however, arrangements to ready the Victoria Avenue property for relocation did not occur. Mr Young’s point of contact was the appellant, who, in turn, referred him to others. The settlement date passed without resolution of the problem. Mr Young went to the Newmarket office of Mr Zhou, but found the office empty. Mr Young instructed a lawyer to act on his behalf. Initiatives he took to contact the appellant were unsuccessful.
[19] Then, after a delay of a few months, Mr Tong advised Mr Young that the appellant wished to meet with him. The meeting was scheduled for 16 June 2003 at 10.00 pm. Mr Young understood that Mr Tong would act as an intermediary and accompany him to the meeting.
[20] But, at about 9.00 pm, Mr Tong telephoned Mr Young and said that he would not be taking Mr Young to the meeting, but that he had arranged for three men to accompany Mr Young. They would wait to be uplifted from a hamburger bar. Mr Young arranged for Shun Yao (the second complainant) to take him to the meeting. Mr Yao is a brother of Angel Yao. The two men first uplifted the three men whom Mr Tong had arranged to attend the meeting. By now it was after 10.00 pm, and Mr Young received a call on his cellphone from the appellant requesting him to hurry up.
[21] On arrival at Victoria Avenue the car was parked near to the appellant’s home. Shun Yao remained in the vehicle, while Mr Young and the other three men got out and made to enter the driveway. At this point an Audi car arrived at the address but did not enter the driveway. It contained a number of people, two of whom Mr Young recognised, being Mr Zhou and Christina Liang.
[22] He then continued up the driveway and went to the front door, while the other three men disappeared down the side of the house. No-one answered the door. Then, the Mercedes car which Mr Young had previously swapped drove down the driveway. A group of men, including the appellant, emerged from it. The appellant said to Mr Young in Cantonese that he was going to kill him. Another group of men emerged from beside the house and also confronted Mr Young. Of this group Mr Young only recognised Howard Kao. The other assailants from both groups were strangers to Mr Young.
[23] The appellant was armed with a knife and after Mr Young was pulled to the ground the knife was held to his throat. At that moment the appellant’s cellphone rang, he desisted and told the other assailants to "beat him to death". They attacked Mr Young with weapons. In particular, he was struck a blow with a baseball bat or golf club to the area of his left eye. His eye socket was fractured and his vision impaired. Having completed his phone call the appellant spoke to members of his group saying "the boss said there’s someone in the car, go and get them". Mr Young saw a number of the assailants head up the driveway. The assault on him continued until, after a time, he was dragged to the basement area of the house.
[24] Meanwhile a number of men surrounded Mr Yao in the parked car. Some of them were armed with golf clubs. Mr Yao was told to get out but he refused to do so. The driver’s door was kicked and damaged. After further threats Mr Yao got out of the car and he too was dragged to the basement of the house.
[25] In the basement area the two victims were separated and beaten by different assailants. Mr Young was robbed of his watch, cellphone and loose cash. Mr Yao was also robbed of his wallet and cellphone.
[26] The next phase involved the victims being required to write admissions of responsibility for certain property damage and an acceptance of liability to make good the damage. In the end result the document comprised three pages which was produced at trial as exhibit 5. Both Shun Yao and Mr Young subscribed to the document, and indeed were required to witness each other’s contributions. The assailants would not accept that Shane Young was the complainant’s real name and at their insistence he provided a Chinese name, Yong Chee Chong. He was provided with a cardboard box for a laser printer upon which to write. He experienced difficulty in completing the document as a result of blood dripping from his facial wounds onto the paper which he had been provided. One of the assailants obtained a roll and provided toilet paper to Mr Young to stem the blood flow. At one point the appellant came to the basement, instructed Mr Yao concerning what he should write and took the document upstairs before it was returned to be finally completed.
[27] Mr Young (using the name Yong Chee Chong) wrote admissions to having broken the windows of three cars at 149 Victoria Avenue (the address of the house which Mr Young was to relocate) and that he had driven three vehicles (identified by registration numbers) in Victoria Avenue and Marine Parade in the early hours of the morning. He also wrote an admission, on instruction, that he had set fire to the property at 90 Marine Parade, Howick. The document continued that "this wrongdoing (was done) with my girlfriend little brother Yao Shun". Mr Young’s part of the document concluded that he regretted what he had done and was willing to pay damages in the sum of NZ$300,000. The part of the document written by Shun Yao was to the effect that he had assisted "Yong Chee Chong" in the wrongdoing and accepted responsibility for the part he had played.
[28] After exhibit 5 was completed Mr Young was driven back to Angel Yao’s address in Pakaranga, where he also lived. Shun Yao remained in the basement at Victoria Avenue. Mr Young was taken to the house to collect a sum of money. On arrival, he was permitted to enter the house and while inside he made a phone call to a friend, Morgan Young, and told him he had been beaten up "by the people who are selling me the bungalow". He wanted Morgan Young to know this in case he disappeared. Mr Young also uplifted $3,000 in cash from the house.
[29] He was then driven back to the appellant’s address and the $3,000 was taken from him. At some point Mr Yao was required to clean Mr Young’s blood from the floor of the basement. He did so using paper from the toilet roll.
[30] Later still the complainants were released. Before this occurred the appellant spoke to them, indicating that if they did not cooperate and do as they were told retribution would be taken against their family and friends. The complainants left Victoria Avenue in the same car they had arrived in and drove to the Pakaranga address.
[31] On the morning of 17 June Angel Yao took Mr Young to the hospital where he received treatment for his injuries, which required surgery a few days later. The police were also called to the hospital and spoke to Mr Young concerning the events of the previous night.

Supporting forensic evidence

[32] The Crown case was also based upon items of forensic evidence. The Victoria Avenue address was searched on 17 June 2003. A wooden baseball bat was located in a vehicle at the address and a metal bat was found behind the kitchen door. In the basement the police located a cardboard box for a laser printer and, on it, a toilet paper roll. In writing the admission note Mr Young had used a Mount Blanc pen which belonged to him. Located inside the empty laser printer box in the basement was the lid to Mr Young’s Mount Blanc pen. There were also blood spots on the toilet roll, the pen lid and six spots on the upper surface of the cardboard box itself. In addition, there were blood smears on a wall and on a door at the top of the basement stairs.
[33] DNA profiles obtained from these blood spots and smears was matched against a blood sample taken from Mr Young. The comparison provided extremely strong support for the conclusion that the blood from the house and from the sample matched.
[34] During the search a photocopy of the three pages comprising exhibit 5 were located on a desk in the appellant’s study at Victoria Avenue. Mr Young gave evidence that he had no connection to, and had not driven, the three vehicles described in exhibit 5, which he was supposed to have used to disturb the occupants of Victoria Avenue and Marine Parade in the early hours of the morning.
[35] Also located in the appellant’s study was exhibit 6, being a page on which were mounted labels containing the current vehicle details as at 11 June 2003 for four different motor vehicles, including two of the three vehicles identified by registration number in the admission note. The appellant’s explanation at trial for this was that Christina Liang gave him the document and warned him to beware of these vehicles, because a person using them was causing property damage to assets of the company operated by herself and Mr Zhou.
[36] Further, the property at 90 Marine Parade, Howick, was found by the police to appear on a statement of Mr Zhou and Ms Liang’s assets and liabilities. This statement was located at the appellant’s business office.
[37] There was also evidence which confirmed that the vehicle which Mr Young and Shun Yao used to travel to Victoria Avenue on 16 June 2003 sustained damage to the driver’s side door. The person who provided the vehicle gave evidence and confirmed as much.
[38] A plastic reconstructive surgeon who treated Mr Young’s facial injuries said the depressed fracture of the cheekbone which he had suffered was consistent with a blow from a weapon such as a bat, golf club or the like.

The defence case

[39] On 25 June 2003 the appellant attended the police station to be interviewed. However, under advice, he elected not to make a statement. Prior to trial, however, he gave notice of an alibi. This was to the effect that from about midnight on 16-17 June he was at his office, before going to a Chinese restaurant for a meal until 3.00 am.
[40] The appellant gave evidence at trial. With reference to the earlier part of the evening the appellant said that he was at home when, at about 10.30 pm, he received a phone call from Samuel Tong. A short time later Mr Young arrived at his home. He was bleeding from an injury to the area of his left eye. Mr Young was excited and loud and accused the appellant of arranging for someone to assault him.
[41] To avoid a commotion on the doorstep the appellant said that he took Mr Young to the basement area of his house. Mr Young was supplied with toilet paper to clean up the blood on his face. There was a discussion concerning the difficulties Mr Young was having in relation to relocation of the house from Victoria Avenue. The appellant told Mr Young the dispute had nothing to do with him.
[42] The appellant said that Mr Young remained for about 40 minutes, during which time he became calmer. Before leaving the house, Mr Young gave the appellant the three sheets of paper which were to comprise exhibit 5. Mr Young told the appellant that before he arrived at Victoria Avenue he had been forced to write the words on the pages. The appellant said that he could not read the document, but he retained it and placed it in his study, where it was later found by the police. Mr Young finally left at about 11.15 pm, after which the appellant returned to his office in town and went on to a restaurant.
[43] The appellant also said that Mr Young came to his address alone. He was not in the company of Shun Yao that night.
[44] In cross-examination the appellant said that he had no involvement in the transaction whereby Mr Young was to relocate a house in exchange for his Mercedes car. Save for introducing Mr Young to Mr Zhou with reference to the former wishing to selling Mr Zhou a car, the appellant said he had no hand in any business transaction between the two men.
[45] The appellant’s co-accused, Howard Kao, did not give evidence. His defence was that he played no part in anything that occurred at the appellant’s home on the night of 16 June 2003. Mr Kao was identified by both Mr Young and Shun Yao as both present at the house and as one of the assailants. However, with reference to the identification of Mr Kao by Shun Yao the Judge directed the jury as soon as the identification occurred that a "proper foundation for an identification, particularly from the dock ..." had not been established, and that Shun Yao’s identification evidence was to be ignored.

Verdicts "against the weight of evidence"

[46] The basis upon which this ground of appeal was expressed is misconceived. The relevant available statutory ground of appeal is that "the verdict of the jury should be set aside on the ground that it is unreasonable and cannot be supported having regard to the evidence": s 385(1)(a) Crimes Act 1961. The distinction is important. It is not for this Court to reach its own independent view as to the appropriate verdicts in the case. That remains the province of the jury who enjoyed the singular advantage of hearing all the evidence. It was for the jury to judge the credibility of the two accounts which it heard.
[47] This Court has an overarching responsibility to intervene on appeal where there was no evidence to support a verdict or where a jury acting reasonably could not have come to the decision which it did: R v Ramage [1985] 1 NZLR 392 (CA). Contrary to the proper approach, we were effectively implored by counsel to retry the case and conclude that the verdicts were against the weight of the evidence. Issues of credibility and weight are not for this Court. We are not persuaded that the evidence in this case did not reasonably support the verdicts which the jury reached.
[48] As can be seen from the summary of the Crown case, the evidence of the two complainants was supportive of the counts contained in the indictment. The issue for the jury was two-fold. Did it accept the evidence of Mr Young and Shun Yao? Or, was the defence case one which raised a reasonable doubt about an essential element of the Crown case? The verdicts indicate that both propositions were answered in favour of the Crown.
[49] The background to the case and the events of 16-17 June 2003, which formed the basis for the charges, was unusual. No doubt there were cultural factors which were of relevance on that account. On the other hand, we consider there was significant evidence supportive of the complainants’ accounts. This material is summarised at paragraphs [32]-[38] of this decision.
[50] By contrast, elements of the defence case could well have been regarded by the jury as contrived. The suggestion that Mr Young visited the appellant when he had already sustained a serious injury to his left eye was curious. Likewise, the appellant’s account that he took the complainant to the basement of his home, provided him with absorbent paper to stem the blood loss and received from Mr Young the admission note before his departure, was able to be seen as a convenient explanation for elements of the Crown case; and as an explanation which emerged only late in the day. Yet, there remained aspects of the Crown case which defied explanation, for example the circumstance that the lid to Mr Young’s pen was found in the empty laser printer box. We are in no doubt it was competent for the jury to accept the complainant’s account and reject the defence case.
[51] We do not overlook Mr Williams’ arguments directed to collateral issues in relation to which Mr Young was cross-examined over a period of days. These matters, mainly arising in relation to Mr Young’s private and business life, were well capable of influencing the jury’s assessment of Mr Young’s credibility. From a reading of the closing addresses of counsel and of the summing-up, it is apparent that the challenge to Mr Young’s honesty and reliability was squarely before the jury. It is apparent, therefore, that Mr Young’s credibility was amply put to the test.
[52] Nor do we overlook that the jury acquitted Howard Kao in relation to all the counts which he faced. Ms Feltham submitted that this outcome likely reflected the Judge’s direction to the jury that Shun Yao’s dock identification of Howard Kao was to be ignored. This meant the only remaining evidence of identification was that provided by Mr Young. Whereas the counts which produced guilty verdicts were all in some respect supported by independent forensic evidence, the same could not be said of Mr Young’s identification evidence implicating Howard Kao. On this basis, we think, the pattern of the verdicts is explicable.

Prosecutorial misconduct

[53] This ground of appeal concerns an aspect of the evidence to which we have not so far referred. The Crown case included reliance upon phone calls to and from the cellphones of the appellant and Howard Kao during the crucial period on the night of 16-17 June 2003.
[54] However, when the appellant gave evidence at trial he said that both his 027 cellphone, and a similar cellphone of Howard Kao, were on loan that night to business associates from overseas who were in New Zealand and needed cellphones during their visits. Perchance, the cellphones were returned to their owners at the restaurant dinner in the early hours of 17 June, because the business associates were going to the South Island the next morning. The appellant explained that Howard Kao also attended the dinner.
[55] Samuel Tong was called as a defence witness. Under cross-examination he was referred to a phone call made between the relevant hours on 16-17 June from his phone to the 027 cellphone of Howard Kao. He replied that he made the call, but it was not to Howard Kao, rather to the business associate from overseas to whom the phone had been loaned. Mr Tong added that he had spoken to the appellant who requested him to ring this person and invite him to the late evening supper.
[56] In closing the Crown case the prosecutor said with reference to this phone call made at 11.09 pm that Mr Tong "was pretty well briefed on that, wasn’t he, to explain away how he made that call". It was this reference in the closing address which is the subject-matter of the present ground of appeal.
[57] Defence counsel took strong exception to the prosecutor’s remark. The matter was raised with the trial Judge at the conclusion of the closing addresses, when opportunity was extended to all counsel to raise matters of concern arising from closings. We note that, by then, the prosecutor’s remark had been the subject of criticism by Mr Williams. At a very early point in his closing address counsel said:

My Friend in his summation said to you that Mr Tong had been well briefed, that Mr Tong had told lies and that he had been well briefed. That of course is a very nasty allegation to make. The plain fact, of course, as you probably remember, is his evidence was led from a statement he made to the police. Mr Tong made a statement to the police two years ago and that was the statement that his evidence was led from. (It is) now alleged, the defence had briefed him, and that’s why he’s telling lies. An example of how people can mislead.

It is common ground that Mr Tong had made a statement to the police. However, we are advised, the statement did not extend to the relevant 11.09 pm telephone call.

[58] The trial Judge referred to the matter in summing up. She said that before she summarised the respective cases "there are just a number of matters which I have discussed with counsel, and I am going to mention them to you now". One such matter was:

... Mr Corlett and Mr Butler accept that the Defence have in no way tried to coach Mr Samuel Tong in the evidence he gave.

Nonetheless, Mr Williams argued that the "pretty well briefed" remark was a gross breach, carefully calculated to undermine the defence case by attributing unscrupulous behaviour to defence counsel.

[59] Ms Feltham accepted that the reference to a witness being well-briefed was inappropriate and unfortunate. She accepted that the closing submission should have been couched in terms which challenged Mr Tong’s credibility, but without an aspersion cast on defence counsel. We agree.
[60] The issue for present purposes is whether the prosecutor’s remark impacted upon the fairness of the trial. We are unpersuaded of this. The remark was directed to one aspect of the evidence of one witness, rather than being of more general application. But more importantly, Mr Williams responded to the aspersion in his closing address and did so in emphatic terms. Then, the trial Judge specifically addressed the matter by recording that both senior and junior counsel for the prosecution resiled from the aspersion which the remark conveyed.
[61] We are satisfied that the balance was satisfactorily restored.

Failure to put the defence in summing-up

[62] Mr Williams argued that the Judge failed in the course of her summing-up to refer to the evidence of the appellant and to point out the implausibility of a person of his status and position being involved in an endeavour to extract money from Mr Young. Hence, it was said, the summing-up was unfair to the defence and inadequate.
[63] It is the case that the Judge did not attempt to summarise the appellant’s evidence in the course of her summing-up. But we see no error in this. Before turning to the respective cases the Judge explained that she did not propose to "laboriously summarise all the evidence". She added that the jury had heard all the evidence and closing addresses from experienced counsel in the course of "just over three weeks".
[64] Following reference to the respective cases and after re-emphasising that there was no onus upon the defence the Judge observed that:

In this case you are faced with almost a complete conflict between the Crown case and the two defence cases. You are faced with both accused saying the two complainants for the Crown have fabricated their evidence .... .

Then, in the concluding comments of the summing-up, the Judge referred to the need to resolve this conflict, to reach unanimous verdicts and she stressed again the onus upon the Crown to establish the case beyond reasonable doubt.

[65] We are well satisfied that the summing-up was balanced and appropriate to the occasion. The two conflicting accounts were well and truly before the jury. Hence, both the closing addresses and the summing-up were directed to the resolution of the conflict. The Judge marshalled the arguments advanced by counsel in support of acceptance of their respective cases and rejection of the other account. We regard the approach adopted as conventional, balanced and fair.

Jury misconduct

[66] This ground was also advanced on a wide-ranging basis. Affidavits in support were filed by Ms Heeni Phillips (Mr Williams’ partner who was an observer throughout the trial) and Mr Michael Crawford, a private investigator, who gave evidence for the defence and also observed substantial parts of the case. In addition, junior defence counsel, Mr Reid, filed a memorandum describing various concerns he held on account of actions of jury members. Junior counsel for the Crown swore an affidavit responding to the defence affidavits and to Mr Reid’s memorandum.
[67] We also have a report from the trial Judge dated 29 September 2006, to which we will return in a moment, and copies of four communications from members of the jury to the Judge written at different points in the trial.
[68] The matters of concern can be summarised as follows. First, that at an early stage in the trial and in the course of Mr Williams’ final address some jurors were not concentrating and appeared to be asleep; secondly, that three younger jurors were noticeably inattentive and engaged in distracting behaviour from time to time; thirdly, that the foreman of the jury delayed her return to court until other jury members were seated so that she could make a "theatrical" entry; fourthly, that during the evidence of the final defence witness (Sara Chatwin, a psychologist) the foreman appeared to be laughing and covering her lower face with her jersey, and, more generally, that members of the jury expressed concern at the time which the case was taking in such a manner as to indicate a lack of appropriate application to their task.
[69] With reference to jurors appearing to be asleep, Judge Mathers noticed this on two occasions being the first day of the trial and two days later. Both times she took action. The issue was discussed with counsel in chambers and in at least one instance the juror was interviewed and it transpired that he was recovering from influenza and struggling a little for that reason. Otherwise, the trial Judge did not consider there was a problem on this account.
[70] With reference to the suggested existence of a clique of younger jurors who were inattentive and distracting, the trial Judge did not notice behaviour of this kind. However, junior counsel are in agreement that there was one occasion when some members of the jury appeared to be distracted and the Judge intervened, asked whether there was a difficulty and matters settled down.
[71] The trial Judge considered that the behaviour of the female foreman in returning to Court when the other jury members were seated was "a little eccentric", but this did not impress the Judge as a matter of real concern. Judge Mathers did not observe the conduct of the foreman while Ms Chatwin was giving evidence, but junior counsel are in agreement that the conduct as described did occur.
[72] It was apparent to the trial Judge that the time which the trial was taking became a matter of concern for some jurors. Towards the end of the second week the foreman wrote a note to the Judge which included this:

I know that you have no control over the time which is wasted by the system but I am personally finding it very frustrating sitting doing nothing in the jury room, knowing that I am badly needed elsewhere. Yesterday was particularly difficult with very little constructive time being spent in court. ... I apologise for bothering you and I have no desire to be contumacious but I will have major difficulties if this case goes on much longer. I suspect that there is little that you can do to expedite this situation but I wish to communicate with someone in this system about the effect that lengthening this case will have on me personally and professionally.

Judge Mathers saw the foreman in chambers with counsel following receipt of this communication. The Judge indicated that the case would extend into a third week with a summing-up on Tuesday and whatever further time was required for the jury’s deliberations.

[73] The next day the foreman wrote a shorter note to the Judge as follows:

We do appreciate the efforts you are making to reduce the time we have to spend out of the courtroom. The rest of the jury have remarked on it and seem more settled.

In the event the Judge did sum up on Tuesday, 19 July 2005. The jury was out overnight and deliberated throughout the next day. A question was answered in the late afternoon. Verdicts were returned later that day.

[74] We are far from persuaded that jury misconduct was a feature of this case such as to give rise to the risk of a miscarriage. It is apparent that the trial was not without difficulty. A number of important witnesses gave evidence with the assistance of an interpreter. Jurors were concerned about careless pronunciation of certain of the Chinese names and this excited one of the written communications to the trial Judge. It is also apparent that the trial was characterised by numerous interruptions in relation to rulings and related issues, which required the absence of the jury from the courtroom.
[75] But in the end result Judge Mathers assessed the case in these terms:

Overall I would comment that other than the large number of points on which I was required to rule, there is nothing else that struck me as being different from any other jury trial that I have presided over. Certainly no counsel raised with me any concerns during the trial.

We find no basis to differ from this assessment.

Inadmissible evidence and s 66(2)

[76] Detective Glassey was the police officer who spoke to Mr Young at the hospital on 17 June 2003 and obtained a first account of the relevant events. She made a job sheet entry. Mr Mansfield, on behalf of Howard Kao, cross-examined Detective Glassey with reference to the job sheet record:

Have you recorded in your job sheet, prepared on your return to the police station and this is a full quote: Young believed that the offenders in the upstairs part of the house included Laing LAING, Xhou XHOU, Len LEN, and a male also know to him as Howard Kao, KAO. Next line, Young believes, in brackets, although he does not explain why, end of brackets, that he has been set up by Samuel Choi CHOI Kai KAI in order to wipe the debt of $70,000 ..... So yep.

[77] Mr Mansfield’s questions continued in the vein that this was the extent of Mr Young’s reference to Howard Kao when first spoken to, namely that Mr Young believed Howard Kao was upstairs rather than more directly involved in the relevant events. No objection was taken to this line of cross-examination on behalf of the appellant. We note that, following an application for the job sheet to be admitted as an exhibit, Judge Mathers ruled against this.
[78] Towards the end of their deliberations the jury sought clarification of the words "probable consequence" in s 66(2). The Judge consulted counsel and answered the jury’s question in a manner which is not criticised.
[79] Mr Williams’ argument was that, with the benefit of hindsight, the answer elicited by Mr Mansfield in cross-examination should have been ruled inadmissible, at least in relation to the appellant. And, counsel also contended, the jury question directed to s 66(2) indicated a focus upon this dimension of the case in circumstances where it was highly likely the evidence of Detective Glassey was brought to account to the detriment of the appellant.
[80] Counsel contended that Detective Glassey’s answer to Mr Mansfield was hearsay and inadmissible on that account. We are by no means satisfied that this is so. Counsel may cross-examine a witness to elicit an inconsistent prior statement, or account. In this case, of course, the main complainant was challenged on this basis. Such is not unusual. For example, where identification is in issue, an identifying witness’s first description of the offender may be the subject of cross-examination and any record of that description may be admissible in terms of s 22A of the Evidence Act 1908.
[81] But, even if we assume Mr Mansfield was not entitled to cross-examine in the manner he did, because the answer adversely affected the appellant, a problem still remains. As can be seen from the quoted extract there was no reference to the appellant by name as one of the men whom Mr Young believed was in the upstairs area of the house at the relevant time. Mr Williams argued that the reference to "Len LEN" would have been understood by the jury to be the appellant. Hence, his argument continued, when the jury asked the question directed to s 66(2) they must have had this evidence from Detective Glassey in mind.
[82] We regard this thesis as speculative. In the first place we do not appreciate why the jury would equate "Len LEN" with the appellant, Sen Lin. But even if they did, the contention that this evidence prompted their question concerning s 66(2) is barely tenable. The Crown case as a whole required acceptance of the proposition that the appellant was a party to the actions of a group of assailants because he counselled and encouraged them to act as they did, or alternatively that their actions were a probable consequence of what they had been retained by the appellant to do. The evidence of Mr Young and Shun Yao directly raised these contentions. We can find no realistic basis to conclude that the jury question reflected reliance upon the evidence of Detective Glassey. It is much more likely that the jury was focused upon the trial evidence of the two complainants, which after all was central to the Crown case.
[83] For these reasons this ground of appeal also fails.

Conclusion

[84] Neither individually, nor collectively, do the various grounds of appeal provide a basis for concern as to a miscarriage of justice in this case.
[85] The appeal, therefore, is dismissed.

Solicitors:
DCS Reid Solicitor, Auckland for Appellant
Crown Law Office, Wellington

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[1]	The appellant and Howard Kao, were jointly charged with the detention, assault and robbery of Shane Young and Shun Yao. All four men are of Chinese extraction. In broad terms it was alleged that a dispute arose between Shane Young and two other Chinese persons with whom he had entered into a commercial transaction. Shane Young considered that he had performed his side of the bargain, but that the other parties to the contract had not.
[2]	On 16 June 2003 Mr Young was requested to go to the appellant’s home at 218 Victoria Avenue, Remuera. The reason for the meeting was the unresolved business transaction. The appellant, and his co-accused Howard Kao, were said by the Crown to be associates of the other parties to the transaction.
[3]	Mr Young asked Shun Yao to accompany him. On arrival at the address Mr Young said he was confronted by the appellant and a large group of men. They attacked him. Shortly later, Sun Yao was removed from the vehicle in which the two men had travelled to Victoria Avenue, and also set upon. The two were then taken to a basement at the address, further assaulted, robbed and required to complete a document which became an important exhibit at the trial. Eventually the two men were released. Shane Young had sustained significant facial injuries. Shun Yao’s injuries were more superficial.
[4]	After a trial in the District Court which occupied three and a half weeks the jury acquitted Howard Kao on all of the seven charges which he faced. The appellant, however, was found guilty of unlawfully detaining, causing grievous bodily harm with that intent and the aggravated robbery of Shane Young and, in relation to the second complainant, Shun Yao, he was convicted of unlawfully detaining him, assault and aggravated robbery.
[5]	The appellant was sentenced by the trial Judge, Judge Mathers, to six and a half years imprisonment. The appeal is against conviction.

[6]	The notice of appeal set out 24 separate grounds of appeal. Different aspects of the evidence, the trial process, the conduct of the prosecutor, various actions of the jury and elements of the summing-up were the subject of criticism and challenge.
[7]	But in the end result the conviction appeal was framed with reference to effectively five separate grounds of appeal. The first was that the verdicts of guilty were "against the weight of evidence", unreasonable and contrary to a proper analysis of the evidence.
[8]	The second ground was that the prosecutor in closing the Crown case improperly argued that a defence witness was "pretty well briefed" in relation to the evidence he gave. This observation was criticised as "gross and disturbing", and calculated to inappropriately influence the jury against the appellant (and his co-accused), by imputing to defence counsel that they had briefed the witness to commit perjury.
[9]	The third ground was that the trial Judge erred in her summing-up in that the evidence given by the appellant was not mentioned and, thereby, the appellant’s defence was not adequately put to the jury.
[10]	The next ground was that members of the jury were guilty of misconduct and prejudicial behaviour such as to indicate a concern that the jury did not concentrate adequately upon the task at hand and did not act in a fair and unbiased manner towards the appellant. Also, members of the jury were said to have allowed their concerns about the duration of the trial to intrude at the expense of the appellant’s right to a fair trial.
[11]	Finally, the fifth ground of appeal was that counsel for Howard Kao, the co-accused, introduced inadmissible evidence in cross-examination of a detective, which evidence adversely affected the appellant and improperly influenced the jury in relation to s 66(2) of the Crimes Act 1961. The Judge explained to the jury that the appellant (and his co-accused) were parties to offences committed by other assailants, provided there was a common intention to effect an unlawful purpose and the particular offence was a probable consequence of the assailants’ overall objective. These directions were not criticised, but Mr Williams QC contended that, in light of a question asked by the jury late in their deliberations (directed to s 66(2)), it was apparent that they were focused upon inadmissible evidence from the detective elicited by Mr Mansfield in cross-examination. Thereby, it was said, there was a risk of a miscarriage of justice arising from verdicts based upon s 66(2) when inadmissible evidence had been brought to account in that context.
[12]	Although Mr Williams strongly argued that certain of the grounds of appeal were decisive individually, he also urged us to view the grounds cumulatively, and thereby conclude that a miscarriage of justice was demonstrated.
[13]	As can be seen the grounds of appeal, even in their final form, challenge the case as a whole. The adequacy of the evidence, the trial process (in relation to prosecutorial and jury misconduct) and the summing-up are all impeached. In these circumstances we think it necessary to first summarise the Crown and defence cases, before turning to the five individual grounds of appeal. Thereby, a context is provided against which the various criticisms may be better assessed.

[14]	Shane Young immigrated to New Zealand in 1997. At the time of trial he was aged 40 years. In New Zealand he met Samuel Tong who, in 2002, became involved in the establishment of a massage parlour. The co-accused, Howard Kao, sought to assist Mr Tong by providing a character reference. Mr Young assisted with the preparation of that reference and thereby met Howard Kao.
[15]	Sometime later Mr Tong was instrumental in introducing Mr Young to the appellant. He immigrated to New Zealand in 1997, aged 30 years. Mr Young sold the appellant some electrical items and, as a result, had occasion to visit the appellant’s home address at 218 Victoria Avenue, Remuera.
[16]	Arising from this contact in relation to the equipment sale, a business proposition was put to Mr Young. The appellant showed Mr Young a house at another address on Victoria Avenue which was available for removal to enable re-development of the land on which it was situated. Mr Young consulted his friend and landlady, Angel Yao, and agreed to remove the house and relocate it to land at Pakaranga owned by Ms Yao.
[17]	On 23 January 2003 the appellant took Mr Young to an office in Newmarket. He introduced Mr Young to David Zhou and Mr Zhou’s wife, Christina Liang. The appellant referred to Mr Zhou as his boss. An agreement for sale and purchase was completed, dated 23 January 2003, in relation to the Victoria Avenue house. The vendor and purchaser were both companies (Mr Young having formed a company for the purposes of the transaction). The agreement was signed by Christina Liang and Shane Young. In lieu of payment of the purchase price of $30,000, Mr Young agreed to provide a Mercedes car in exchange for the house. Removal of the house from the site was to occur by 28 March 2003.
[18]	Soon after the agreement was signed Mr Zhou visited Mr Young and uplifted the Mercedes car. Despite inquiries on Mr Young’s part, however, arrangements to ready the Victoria Avenue property for relocation did not occur. Mr Young’s point of contact was the appellant, who, in turn, referred him to others. The settlement date passed without resolution of the problem. Mr Young went to the Newmarket office of Mr Zhou, but found the office empty. Mr Young instructed a lawyer to act on his behalf. Initiatives he took to contact the appellant were unsuccessful.
[19]	Then, after a delay of a few months, Mr Tong advised Mr Young that the appellant wished to meet with him. The meeting was scheduled for 16 June 2003 at 10.00 pm. Mr Young understood that Mr Tong would act as an intermediary and accompany him to the meeting.
[20]	But, at about 9.00 pm, Mr Tong telephoned Mr Young and said that he would not be taking Mr Young to the meeting, but that he had arranged for three men to accompany Mr Young. They would wait to be uplifted from a hamburger bar. Mr Young arranged for Shun Yao (the second complainant) to take him to the meeting. Mr Yao is a brother of Angel Yao. The two men first uplifted the three men whom Mr Tong had arranged to attend the meeting. By now it was after 10.00 pm, and Mr Young received a call on his cellphone from the appellant requesting him to hurry up.
[21]	On arrival at Victoria Avenue the car was parked near to the appellant’s home. Shun Yao remained in the vehicle, while Mr Young and the other three men got out and made to enter the driveway. At this point an Audi car arrived at the address but did not enter the driveway. It contained a number of people, two of whom Mr Young recognised, being Mr Zhou and Christina Liang.
[22]	He then continued up the driveway and went to the front door, while the other three men disappeared down the side of the house. No-one answered the door. Then, the Mercedes car which Mr Young had previously swapped drove down the driveway. A group of men, including the appellant, emerged from it. The appellant said to Mr Young in Cantonese that he was going to kill him. Another group of men emerged from beside the house and also confronted Mr Young. Of this group Mr Young only recognised Howard Kao. The other assailants from both groups were strangers to Mr Young.
[23]	The appellant was armed with a knife and after Mr Young was pulled to the ground the knife was held to his throat. At that moment the appellant’s cellphone rang, he desisted and told the other assailants to "beat him to death". They attacked Mr Young with weapons. In particular, he was struck a blow with a baseball bat or golf club to the area of his left eye. His eye socket was fractured and his vision impaired. Having completed his phone call the appellant spoke to members of his group saying "the boss said there’s someone in the car, go and get them". Mr Young saw a number of the assailants head up the driveway. The assault on him continued until, after a time, he was dragged to the basement area of the house.
[24]	Meanwhile a number of men surrounded Mr Yao in the parked car. Some of them were armed with golf clubs. Mr Yao was told to get out but he refused to do so. The driver’s door was kicked and damaged. After further threats Mr Yao got out of the car and he too was dragged to the basement of the house.
[25]	In the basement area the two victims were separated and beaten by different assailants. Mr Young was robbed of his watch, cellphone and loose cash. Mr Yao was also robbed of his wallet and cellphone.
[26]	The next phase involved the victims being required to write admissions of responsibility for certain property damage and an acceptance of liability to make good the damage. In the end result the document comprised three pages which was produced at trial as exhibit 5. Both Shun Yao and Mr Young subscribed to the document, and indeed were required to witness each other’s contributions. The assailants would not accept that Shane Young was the complainant’s real name and at their insistence he provided a Chinese name, Yong Chee Chong. He was provided with a cardboard box for a laser printer upon which to write. He experienced difficulty in completing the document as a result of blood dripping from his facial wounds onto the paper which he had been provided. One of the assailants obtained a roll and provided toilet paper to Mr Young to stem the blood flow. At one point the appellant came to the basement, instructed Mr Yao concerning what he should write and took the document upstairs before it was returned to be finally completed.
[27]	Mr Young (using the name Yong Chee Chong) wrote admissions to having broken the windows of three cars at 149 Victoria Avenue (the address of the house which Mr Young was to relocate) and that he had driven three vehicles (identified by registration numbers) in Victoria Avenue and Marine Parade in the early hours of the morning. He also wrote an admission, on instruction, that he had set fire to the property at 90 Marine Parade, Howick. The document continued that "this wrongdoing (was done) with my girlfriend little brother Yao Shun". Mr Young’s part of the document concluded that he regretted what he had done and was willing to pay damages in the sum of NZ$300,000. The part of the document written by Shun Yao was to the effect that he had assisted "Yong Chee Chong" in the wrongdoing and accepted responsibility for the part he had played.
[28]	After exhibit 5 was completed Mr Young was driven back to Angel Yao’s address in Pakaranga, where he also lived. Shun Yao remained in the basement at Victoria Avenue. Mr Young was taken to the house to collect a sum of money. On arrival, he was permitted to enter the house and while inside he made a phone call to a friend, Morgan Young, and told him he had been beaten up "by the people who are selling me the bungalow". He wanted Morgan Young to know this in case he disappeared. Mr Young also uplifted $3,000 in cash from the house.
[29]	He was then driven back to the appellant’s address and the $3,000 was taken from him. At some point Mr Yao was required to clean Mr Young’s blood from the floor of the basement. He did so using paper from the toilet roll.
[30]	Later still the complainants were released. Before this occurred the appellant spoke to them, indicating that if they did not cooperate and do as they were told retribution would be taken against their family and friends. The complainants left Victoria Avenue in the same car they had arrived in and drove to the Pakaranga address.
[31]	On the morning of 17 June Angel Yao took Mr Young to the hospital where he received treatment for his injuries, which required surgery a few days later. The police were also called to the hospital and spoke to Mr Young concerning the events of the previous night.

[32]	The Crown case was also based upon items of forensic evidence. The Victoria Avenue address was searched on 17 June 2003. A wooden baseball bat was located in a vehicle at the address and a metal bat was found behind the kitchen door. In the basement the police located a cardboard box for a laser printer and, on it, a toilet paper roll. In writing the admission note Mr Young had used a Mount Blanc pen which belonged to him. Located inside the empty laser printer box in the basement was the lid to Mr Young’s Mount Blanc pen. There were also blood spots on the toilet roll, the pen lid and six spots on the upper surface of the cardboard box itself. In addition, there were blood smears on a wall and on a door at the top of the basement stairs.
[33]	DNA profiles obtained from these blood spots and smears was matched against a blood sample taken from Mr Young. The comparison provided extremely strong support for the conclusion that the blood from the house and from the sample matched.
[34]	During the search a photocopy of the three pages comprising exhibit 5 were located on a desk in the appellant’s study at Victoria Avenue. Mr Young gave evidence that he had no connection to, and had not driven, the three vehicles described in exhibit 5, which he was supposed to have used to disturb the occupants of Victoria Avenue and Marine Parade in the early hours of the morning.
[35]	Also located in the appellant’s study was exhibit 6, being a page on which were mounted labels containing the current vehicle details as at 11 June 2003 for four different motor vehicles, including two of the three vehicles identified by registration number in the admission note. The appellant’s explanation at trial for this was that Christina Liang gave him the document and warned him to beware of these vehicles, because a person using them was causing property damage to assets of the company operated by herself and Mr Zhou.
[36]	Further, the property at 90 Marine Parade, Howick, was found by the police to appear on a statement of Mr Zhou and Ms Liang’s assets and liabilities. This statement was located at the appellant’s business office.
[37]	There was also evidence which confirmed that the vehicle which Mr Young and Shun Yao used to travel to Victoria Avenue on 16 June 2003 sustained damage to the driver’s side door. The person who provided the vehicle gave evidence and confirmed as much.
[38]	A plastic reconstructive surgeon who treated Mr Young’s facial injuries said the depressed fracture of the cheekbone which he had suffered was consistent with a blow from a weapon such as a bat, golf club or the like.

[39]	On 25 June 2003 the appellant attended the police station to be interviewed. However, under advice, he elected not to make a statement. Prior to trial, however, he gave notice of an alibi. This was to the effect that from about midnight on 16-17 June he was at his office, before going to a Chinese restaurant for a meal until 3.00 am.
[40]	The appellant gave evidence at trial. With reference to the earlier part of the evening the appellant said that he was at home when, at about 10.30 pm, he received a phone call from Samuel Tong. A short time later Mr Young arrived at his home. He was bleeding from an injury to the area of his left eye. Mr Young was excited and loud and accused the appellant of arranging for someone to assault him.
[41]	To avoid a commotion on the doorstep the appellant said that he took Mr Young to the basement area of his house. Mr Young was supplied with toilet paper to clean up the blood on his face. There was a discussion concerning the difficulties Mr Young was having in relation to relocation of the house from Victoria Avenue. The appellant told Mr Young the dispute had nothing to do with him.
[42]	The appellant said that Mr Young remained for about 40 minutes, during which time he became calmer. Before leaving the house, Mr Young gave the appellant the three sheets of paper which were to comprise exhibit 5. Mr Young told the appellant that before he arrived at Victoria Avenue he had been forced to write the words on the pages. The appellant said that he could not read the document, but he retained it and placed it in his study, where it was later found by the police. Mr Young finally left at about 11.15 pm, after which the appellant returned to his office in town and went on to a restaurant.
[43]	The appellant also said that Mr Young came to his address alone. He was not in the company of Shun Yao that night.
[44]	In cross-examination the appellant said that he had no involvement in the transaction whereby Mr Young was to relocate a house in exchange for his Mercedes car. Save for introducing Mr Young to Mr Zhou with reference to the former wishing to selling Mr Zhou a car, the appellant said he had no hand in any business transaction between the two men.
[45]	The appellant’s co-accused, Howard Kao, did not give evidence. His defence was that he played no part in anything that occurred at the appellant’s home on the night of 16 June 2003. Mr Kao was identified by both Mr Young and Shun Yao as both present at the house and as one of the assailants. However, with reference to the identification of Mr Kao by Shun Yao the Judge directed the jury as soon as the identification occurred that a "proper foundation for an identification, particularly from the dock ..." had not been established, and that Shun Yao’s identification evidence was to be ignored.

[46]	The basis upon which this ground of appeal was expressed is misconceived. The relevant available statutory ground of appeal is that "the verdict of the jury should be set aside on the ground that it is unreasonable and cannot be supported having regard to the evidence": s 385(1)(a) Crimes Act 1961. The distinction is important. It is not for this Court to reach its own independent view as to the appropriate verdicts in the case. That remains the province of the jury who enjoyed the singular advantage of hearing all the evidence. It was for the jury to judge the credibility of the two accounts which it heard.
[47]	This Court has an overarching responsibility to intervene on appeal where there was no evidence to support a verdict or where a jury acting reasonably could not have come to the decision which it did: R v Ramage [1985] 1 NZLR 392 (CA). Contrary to the proper approach, we were effectively implored by counsel to retry the case and conclude that the verdicts were against the weight of the evidence. Issues of credibility and weight are not for this Court. We are not persuaded that the evidence in this case did not reasonably support the verdicts which the jury reached.
[48]	As can be seen from the summary of the Crown case, the evidence of the two complainants was supportive of the counts contained in the indictment. The issue for the jury was two-fold. Did it accept the evidence of Mr Young and Shun Yao? Or, was the defence case one which raised a reasonable doubt about an essential element of the Crown case? The verdicts indicate that both propositions were answered in favour of the Crown.
[49]	The background to the case and the events of 16-17 June 2003, which formed the basis for the charges, was unusual. No doubt there were cultural factors which were of relevance on that account. On the other hand, we consider there was significant evidence supportive of the complainants’ accounts. This material is summarised at paragraphs [32]-[38] of this decision.
[50]	By contrast, elements of the defence case could well have been regarded by the jury as contrived. The suggestion that Mr Young visited the appellant when he had already sustained a serious injury to his left eye was curious. Likewise, the appellant’s account that he took the complainant to the basement of his home, provided him with absorbent paper to stem the blood loss and received from Mr Young the admission note before his departure, was able to be seen as a convenient explanation for elements of the Crown case; and as an explanation which emerged only late in the day. Yet, there remained aspects of the Crown case which defied explanation, for example the circumstance that the lid to Mr Young’s pen was found in the empty laser printer box. We are in no doubt it was competent for the jury to accept the complainant’s account and reject the defence case.
[51]	We do not overlook Mr Williams’ arguments directed to collateral issues in relation to which Mr Young was cross-examined over a period of days. These matters, mainly arising in relation to Mr Young’s private and business life, were well capable of influencing the jury’s assessment of Mr Young’s credibility. From a reading of the closing addresses of counsel and of the summing-up, it is apparent that the challenge to Mr Young’s honesty and reliability was squarely before the jury. It is apparent, therefore, that Mr Young’s credibility was amply put to the test.
[52]	Nor do we overlook that the jury acquitted Howard Kao in relation to all the counts which he faced. Ms Feltham submitted that this outcome likely reflected the Judge’s direction to the jury that Shun Yao’s dock identification of Howard Kao was to be ignored. This meant the only remaining evidence of identification was that provided by Mr Young. Whereas the counts which produced guilty verdicts were all in some respect supported by independent forensic evidence, the same could not be said of Mr Young’s identification evidence implicating Howard Kao. On this basis, we think, the pattern of the verdicts is explicable.

[53]	This ground of appeal concerns an aspect of the evidence to which we have not so far referred. The Crown case included reliance upon phone calls to and from the cellphones of the appellant and Howard Kao during the crucial period on the night of 16-17 June 2003.
[54]	However, when the appellant gave evidence at trial he said that both his 027 cellphone, and a similar cellphone of Howard Kao, were on loan that night to business associates from overseas who were in New Zealand and needed cellphones during their visits. Perchance, the cellphones were returned to their owners at the restaurant dinner in the early hours of 17 June, because the business associates were going to the South Island the next morning. The appellant explained that Howard Kao also attended the dinner.
[55]	Samuel Tong was called as a defence witness. Under cross-examination he was referred to a phone call made between the relevant hours on 16-17 June from his phone to the 027 cellphone of Howard Kao. He replied that he made the call, but it was not to Howard Kao, rather to the business associate from overseas to whom the phone had been loaned. Mr Tong added that he had spoken to the appellant who requested him to ring this person and invite him to the late evening supper.
[56]	In closing the Crown case the prosecutor said with reference to this phone call made at 11.09 pm that Mr Tong "was pretty well briefed on that, wasn’t he, to explain away how he made that call". It was this reference in the closing address which is the subject-matter of the present ground of appeal.
[57]	Defence counsel took strong exception to the prosecutor’s remark. The matter was raised with the trial Judge at the conclusion of the closing addresses, when opportunity was extended to all counsel to raise matters of concern arising from closings. We note that, by then, the prosecutor’s remark had been the subject of criticism by Mr Williams. At a very early point in his closing address counsel said:

[59]	Ms Feltham accepted that the reference to a witness being well-briefed was inappropriate and unfortunate. She accepted that the closing submission should have been couched in terms which challenged Mr Tong’s credibility, but without an aspersion cast on defence counsel. We agree.
[60]	The issue for present purposes is whether the prosecutor’s remark impacted upon the fairness of the trial. We are unpersuaded of this. The remark was directed to one aspect of the evidence of one witness, rather than being of more general application. But more importantly, Mr Williams responded to the aspersion in his closing address and did so in emphatic terms. Then, the trial Judge specifically addressed the matter by recording that both senior and junior counsel for the prosecution resiled from the aspersion which the remark conveyed.
[61]	We are satisfied that the balance was satisfactorily restored.

[62]	Mr Williams argued that the Judge failed in the course of her summing-up to refer to the evidence of the appellant and to point out the implausibility of a person of his status and position being involved in an endeavour to extract money from Mr Young. Hence, it was said, the summing-up was unfair to the defence and inadequate.
[63]	It is the case that the Judge did not attempt to summarise the appellant’s evidence in the course of her summing-up. But we see no error in this. Before turning to the respective cases the Judge explained that she did not propose to "laboriously summarise all the evidence". She added that the jury had heard all the evidence and closing addresses from experienced counsel in the course of "just over three weeks".
[64]	Following reference to the respective cases and after re-emphasising that there was no onus upon the defence the Judge observed that:

[66]	This ground was also advanced on a wide-ranging basis. Affidavits in support were filed by Ms Heeni Phillips (Mr Williams’ partner who was an observer throughout the trial) and Mr Michael Crawford, a private investigator, who gave evidence for the defence and also observed substantial parts of the case. In addition, junior defence counsel, Mr Reid, filed a memorandum describing various concerns he held on account of actions of jury members. Junior counsel for the Crown swore an affidavit responding to the defence affidavits and to Mr Reid’s memorandum.
[67]	We also have a report from the trial Judge dated 29 September 2006, to which we will return in a moment, and copies of four communications from members of the jury to the Judge written at different points in the trial.
[68]	The matters of concern can be summarised as follows. First, that at an early stage in the trial and in the course of Mr Williams’ final address some jurors were not concentrating and appeared to be asleep; secondly, that three younger jurors were noticeably inattentive and engaged in distracting behaviour from time to time; thirdly, that the foreman of the jury delayed her return to court until other jury members were seated so that she could make a "theatrical" entry; fourthly, that during the evidence of the final defence witness (Sara Chatwin, a psychologist) the foreman appeared to be laughing and covering her lower face with her jersey, and, more generally, that members of the jury expressed concern at the time which the case was taking in such a manner as to indicate a lack of appropriate application to their task.
[69]	With reference to jurors appearing to be asleep, Judge Mathers noticed this on two occasions being the first day of the trial and two days later. Both times she took action. The issue was discussed with counsel in chambers and in at least one instance the juror was interviewed and it transpired that he was recovering from influenza and struggling a little for that reason. Otherwise, the trial Judge did not consider there was a problem on this account.
[70]	With reference to the suggested existence of a clique of younger jurors who were inattentive and distracting, the trial Judge did not notice behaviour of this kind. However, junior counsel are in agreement that there was one occasion when some members of the jury appeared to be distracted and the Judge intervened, asked whether there was a difficulty and matters settled down.
[71]	The trial Judge considered that the behaviour of the female foreman in returning to Court when the other jury members were seated was "a little eccentric", but this did not impress the Judge as a matter of real concern. Judge Mathers did not observe the conduct of the foreman while Ms Chatwin was giving evidence, but junior counsel are in agreement that the conduct as described did occur.
[72]	It was apparent to the trial Judge that the time which the trial was taking became a matter of concern for some jurors. Towards the end of the second week the foreman wrote a note to the Judge which included this:

[77]	Mr Mansfield’s questions continued in the vein that this was the extent of Mr Young’s reference to Howard Kao when first spoken to, namely that Mr Young believed Howard Kao was upstairs rather than more directly involved in the relevant events. No objection was taken to this line of cross-examination on behalf of the appellant. We note that, following an application for the job sheet to be admitted as an exhibit, Judge Mathers ruled against this.
[78]	Towards the end of their deliberations the jury sought clarification of the words "probable consequence" in s 66(2). The Judge consulted counsel and answered the jury’s question in a manner which is not criticised.
[79]	Mr Williams’ argument was that, with the benefit of hindsight, the answer elicited by Mr Mansfield in cross-examination should have been ruled inadmissible, at least in relation to the appellant. And, counsel also contended, the jury question directed to s 66(2) indicated a focus upon this dimension of the case in circumstances where it was highly likely the evidence of Detective Glassey was brought to account to the detriment of the appellant.
[80]	Counsel contended that Detective Glassey’s answer to Mr Mansfield was hearsay and inadmissible on that account. We are by no means satisfied that this is so. Counsel may cross-examine a witness to elicit an inconsistent prior statement, or account. In this case, of course, the main complainant was challenged on this basis. Such is not unusual. For example, where identification is in issue, an identifying witness’s first description of the offender may be the subject of cross-examination and any record of that description may be admissible in terms of s 22A of the Evidence Act 1908.
[81]	But, even if we assume Mr Mansfield was not entitled to cross-examine in the manner he did, because the answer adversely affected the appellant, a problem still remains. As can be seen from the quoted extract there was no reference to the appellant by name as one of the men whom Mr Young believed was in the upstairs area of the house at the relevant time. Mr Williams argued that the reference to "Len LEN" would have been understood by the jury to be the appellant. Hence, his argument continued, when the jury asked the question directed to s 66(2) they must have had this evidence from Detective Glassey in mind.
[82]	We regard this thesis as speculative. In the first place we do not appreciate why the jury would equate "Len LEN" with the appellant, Sen Lin. But even if they did, the contention that this evidence prompted their question concerning s 66(2) is barely tenable. The Crown case as a whole required acceptance of the proposition that the appellant was a party to the actions of a group of assailants because he counselled and encouraged them to act as they did, or alternatively that their actions were a probable consequence of what they had been retained by the appellant to do. The evidence of Mr Young and Shun Yao directly raised these contentions. We can find no realistic basis to conclude that the jury question reflected reliance upon the evidence of Detective Glassey. It is much more likely that the jury was focused upon the trial evidence of the two complainants, which after all was central to the Crown case.
[83]	For these reasons this ground of appeal also fails.

[84]	Neither individually, nor collectively, do the various grounds of appeal provide a basis for concern as to a miscarriage of justice in this case.
[85]	The appeal, therefore, is dismissed.