R v A (CA301/05) [2006] NZCA 530; [2007] 2 NZLR 218 (11 April 2006)

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NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

PUBLICATION OF THE NAMES OR PARTICULARS LIKELY TO LEAD TO IDENTIFICATION OF ALL OF THE APPELLANTS IS SUPPRESSED UNTIL FURTHER ORDER OF THIS COURT.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA301/05
CA295/05
CA310/05
_CA288/05

THE QUEEN

v

A (CA301/05) B (CA295/05) C (CA310/05) D (CA288/05)

Hearing: 7 and 8 February 2006

Court: William Young P, Hammond and O'Regan JJ Counsel: W T Nabney for Appellant A

P G Mabey QC for Appellant B R B Squire QC for Appellant C

G J King and V Sagaga for Appellant D

B M Stanaway and M N Zarifeh for Crown

Judgment: 11 April 2006

_{JUDGMENT OF THE COURT}

_{A In the cases of A, B and C, their conviction appeals are dismissed.}

R V A (CA301/05) And Ors CA CA301/05 [11 April 2006]

C In the case of D, his conviction appeal is allowed, and a new trial is directed.

D There will be an order suppressing the names, or publication of any particulars likely to lead to their identity, in respect of all four appellants.

REASONS

_{(Given by Hammond J)}

Table of Contents

_{Para No}

Introduction [1] Background [7] D: conviction appeal

(i) Introduction [28]

(ii) The law as to putting the defence case [33] (iii) This case [40] Trial counsel incompetence [60]

_{Inconsistent verdicts}

(i)	Introduction	[73]
(ii)	The law as to inconsistent verdicts	[75]
(iii)	This case	[78]

Additional grounds of appeal against conviction by C

(i) Introduction [82]

(ii) Summing up: the credibility issue [86] (iii) Summing up: the consistency direction [104] (iv) Fresh evidence [111]

Appeals against sentence

(i) Introduction [126]

(ii) Counsel’s submissions [133] (iii) Discussion [138] Suppression orders [144]

[1] In June of 2005 each of the appellants stood trial in the High Court at

Wellington before a jury presided over by Ronald Young J.

[2] These four men all faced counts of abduction and rape. They were all convicted on these counts and sentenced to terms of imprisonment.

[3] Two of these men, who we will designate A and B, were also convicted on counts of unlawful sexual connection by digital penetration and oral sex respectively. They were sentenced to concurrent sentences of imprisonment on those counts.

[4] A and B were acquitted on a count of sexually violating the complainant with an object.

[5] All four appellants now appeal against their convictions, on a variety of grounds. Some of these are peculiar to their individual cases; some grounds of appeal are “common”.

[6] All appellants, save D, also appeal against their sentences.

Background

[7] These charges were “historic”, insofar as they relate to an incident which occurred over the Christmas/New Year period, at Mt Maunganui, in 1988/1989.

[8] The complainant, X, was then 20 years of age. She was employed by a Hamilton radio station as a promotions manager. For about six weeks over that period this radio station broadcast and ran promotions from a caravan situated near Mt Maunganui beach, in the vicinity of the Mt Maunganui Surf Lifesaving Club (“the SLSC”). X was in Mt Maunganui during that period.

[9] In the course of her promotional duties, X became acquainted with C. At that time he was the head lifeguard at the SLSC.

[10] X also became acquainted with A and B. They were police officers stationed at the Mt Maunganui Police Station. These officers had occasion to visit the radio station caravan in the course of their police patrol duties.

[11] X developed something of an attraction for A, which she felt was likely reciprocated. She enlisted the assistance of C in arranging a luncheon date with A.

[12] X’s evidence was that C indicated he would arrange such a date, if X was able to “hang on” in a ride in an inflatable rescue boat. The ride in this boat in fact took place the following day. Either the next morning, or the day after that, C came to the radio station caravan site. He told X that A would pick her up from the caravan site at noon that day.

[13] X said that subsequently, C told her that A had been called out and that he

(C) would take her to where A was working at the time.

[14] According to X, around noon, X went to the SLSC in the belief that she was to be taken to meet A for lunch. At the SLSC she met C. She left with him on the back of a quad bike. The couple rode south along Mt Maunganui beach in the direction of a structure known as the Tay Street Tower. This unit was located at the south end of the beach, at the foot of the sand dunes. From time to time, lifeguards utilised the tower to maintain surveillance over swimmers and other beach users. It took about 10 minutes to traverse the approximately 1.5 kilometres from the SLSC to the Tay Street Tower.

[15] X’s account at trial was that she arrived at the Tay Street Tower with C. He parked the quad bike next to another quad bike already positioned beneath the tower. She said that C indicated that A was waiting for her inside the tower, and that she should enter. She had noted a police car parked nearby with nobody in it, and she was not unduly alarmed. X in fact entered the tower.

[16] On her entry into the tower, followed by C, X said she found A and B and an unknown fourth male person present inside, with a fifth person (D) standing out on the balcony of the tower. The unknown fourth male person (if present) was never located, and could not be charged.

[17] X said she was told to lie down on a mattress in the tower. She was handcuffed to a post in the wall of the tower. Thereafter her shorts were removed by A. She said A then had sexual intercourse with her, followed by B. She said she was then violated by A with an object, following which A again had sexual intercourse with her. This was followed by intercourse with C, and finally D.

[18] X said that she was then returned to the SLSC on the back of one of the quad bikes. She thought it was driven by C, but conceded it may have been D.

[19] After X’s return to the SLSC at around 2.00 pm she said she went across the road to the radio station caravan. She picked up her car keys and drove to her motel, where she showered and washed herself. An hour or so later she returned to work at the caravan. She continued to work there for the rest of the day. X did not report what she alleged had occurred earlier that day at the Tay Street Tower to the police, nor did she make any reference to those events to her fellow employee when she returned to the caravan initially, or after her return from the motel.

[20] X maintained that she had consented to none of the events which occurred at the Tay Street Tower as she had described them. She said she had made a conscious decision to comply with her violators’ wishes because she had found herself trapped in a room with two large policemen, and other men who were unknown quantities to her, and she said that she thought she would get beaten up or hurt in some way if she did not comply.

[21] In statements made to the police, or in evidence given at trial, or both, all the accused admitted having had intercourse with X at the Tay Street Tower. The use of an object to violate X was denied, as was the use of handcuffs to restrain her in the fashion the Crown alleged. Each of the accused maintained that what occurred in the Tay Street Tower was consented to by X. It was said that she went to the tower willingly, and voluntarily consented to all the sexual activity which in fact took place there.

[22] It followed that the only sexual acts that were in dispute at trial were whether an object was used, and whether A had had intercourse with X on a second occasion.

[23] It also followed that if, as the accused claimed, X had gone to the tower and willingly participated in all that occurred there, there could have been no foundation for the abduction charge. That count rested on the proposition that she was detained in the tower without her consent.

[24] In the particular circumstance, the issue of consent, or the lack thereof, was critical to the whole trial. There was no forensic evidence to support X’s account. The delay in charges being laid arose because X had only complained some years after the events we have just noted when she became aware that certain other alleged incidents had precipitated inquiries (and subsequently charges on other matters) against certain of the accused.

[25] In the result, the accused were convicted on all the counts preferred against them, except those charging A and B jointly with unlawful sexual connection relating to the use of an object.

[26] The following sentences were imposed on the appellants, on 5 August 2005:

• A was sentenced to eight and a half years imprisonment for the two counts of rape, three years for abduction, and three years for unlawful sexual connection (to be served concurrently).

• B was sentenced to eight years imprisonment for one count of rape, four years for unlawful sexual connection, and three years for the abduction (to be served concurrently).

• C was sentenced to seven years imprisonment for one count of rape, and three years for abduction (to be served concurrently).

• D was sentenced to five and a half years imprisonment for one count of rape, and three years for abduction (to be served concurrently).

[27] All of the sentences which were imposed reflected what the Judge considered to be sentences appropriate to the actual time of offending. This is in accord with well-established principle, and the sentences do not reflect those which would undoubtedly obtain were these offences to occur today.

D: conviction appeal

(i) Introduction

[28] On D’s behalf Mr King submitted that D had suffered a substantial miscarriage of justice.

[29] First, he made an application to lodge evidence which was said to be fresh, credible and cogent, and which may well have affected the outcome of the trial. This included affidavits from two witnesses who said they saw X approach and engage with D at a concert in Tauranga by the band Crowded House on 10 January 1989 in a manner which it was submitted involved behaviour from X “that [was] totally inconsistent with her allegation that she was raped by [D] days earlier”.

[30] Second, there were advanced further grounds of appeal of trial counsel misconduct, prosecutorial misconduct, inconsistent verdicts, and errors in the Judge’s summing up.

[31] The final ground (of five) under the heading of “errors in summing up” was as follows:

The learned Judge failed to properly or adequately put [D’s] case to the jury. At no stage did he mention [D’s] contention that he did not arrive at the tower until the other three accused were outside and leaving. By contrast he repeatedly referred to the Crown contention that [D] was on the balcony throughout.

[32] We have reached a clear view that this ground of appeal is made out, and that on this ground alone D is entitled to a new trial. We will therefore deal with this ground now because it forms a discrete, “stand-alone” issue.

(ii) The law as to putting the defence case

[33] The underlying principle is that it is the absolute duty of a trial Judge to identify and adequately remind the jury of the defence case in relation to each defendant. It follows that a failure to refer in the summing up to a central line of

defence that has been placed before the jury will generally result in the conviction being set aside, and a new trial ordered.

[34] These obligations on a trial Judge are not contingent, in any case. They are a fundamental obligation on the Court in relation to a fair trial. As was said in R v Marr (1990) 90 Cr App R 154 at 156:

It is ... an inherent principle of our system of trial that however distasteful the offence, however repulsive the defendant, however laughable his defence, he is nevertheless entitled to have his case fairly presented to the jury by counsel and by the judge.

Hence the duty prevails even where the grounds for defence are “weak or improbable” (R v Maney CA116/99, 21 October 1999), and even if there is no real address to the jury from the defence (R v Doctor CA202/03, 21 October 2003).

[35] There never has been, and is not now, any dispute as to the character of this fundamental requirement of a summing up. The difficulty in the vast majority of cases which advance on appeal under this head has lain rather in what is required in the fact-dependent circumstances of each case.

[36] In R v Ryan [1973] 2 NZLR 611 at 614 Richmond J cited with approval the remarks of Lord Goddard CJ in R v Clayton-Wright (1948) 33 Cr App R 22 at 29:

The duty of the Judge in any criminal trial, or, for the matter of that, in any civil trial, is adequately and properly performed if he gives the jury an adequate direction on the law, an adequate direction upon the regard they are to have to particular evidence on such matters as accomplices ... and if he puts before the jury clearly and fairly the contentions on either side, omitting nothing from his charge, so far as the defence is concerned, of the real matters upon which the defence is based. He must give to the jury a fair picture of the defence, but that does not mean to say that he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence which has been given by experts or anyone else. (Emphasis added.)

[37] That passage correctly comprehends that there are limits on a Judge’s duty to put the defence case before the jury. The Judge is absolutely required to see that the nature of the defence is squarely put through his office by summarising the nature of the defence and the evidence. The Judge is not however required to repeat defence

counsel’s arguments, nor to endeavour to “top up” a weak defence case by setting out inconsistencies or matters of that kind.

[38] One sub-set of this general problem which we think bears particular emphasis is that this fundamental duty falls on the trial Judge who cannot, in general, rely on counsel’s closing speeches. There are statements in the appellate judgments, and in the treatises (see eg, R v Hiha CA 4/04 1 June 2004; and Taylor, Appeals at [8-055] respectively), which suggest that in a short and simple trial it may not be necessary for the trial Judge to recite in detail the defence case. However in our view, even in a straightforward criminal jury trial, the presiding Judge should distinctly hesitate before concluding that he or she can safely rely upon counsels’ closing speeches. What is said by a Judge in a criminal jury trial in summing up is said from a position of great authority, and in our experience it is viewed as such by juries. It is for this reason that balance is so important on the part of a trial Judge. Where the heart of the defence is omitted, or some distinctive part of it, there is a very real risk that a jury will infer that the Judge is unimpressed with that defence.

[39] We agree with the observations of the English Court of Appeal in R v Amado-Taylor (2000) 2 Cr App R 189. In that case there was a seven-day trial, including five days of evidence. After directing the jury on the law, the Judge did not proceed to review the evidence. He told the jury that he believed they had received enough assistance from counsel’s closing speeches. For the Court of Appeal, Henry LJ contrasted these facts with a short and more simple trial. He then said at 191-192:

[C]ounsel’s closing speeches are no substitute for a judicial and impartial review of the facts from the trial Judge who is responsible for ensuring that the defendant has a fair trial. And the first step to such a trial is for the judge to focus the jury’s attention on the issues he identifies. That responsibility should not be delegated (or more accurately here, abandoned) to counsel, doubly so when they do not know, when making their speeches, what the judge is expecting of them.

Second, the fact that members of the jury were taking notes does not relieve the judge of this responsibility. Evidence is not given sequentially - it comes out witness by witness and needs to be marshalled and arranged issue by issue. This is the judge’s responsibility - it involves work out of court, which he cannot simply pass on to the jurors.

Third, that the jurors had in written form the defendant’s account in the transcripts of two lengthy interviews, which was consistent with the evidence that he gave, would have helped the jury, but would not have gone all the way to meeting the judge’s responsibility of summing up the case ... .

(iii) This case

[40] In this instance, there are two questions to be asked. First, what was D’s defence? Second, were the nature of that defence and the salient features of it adequately conveyed to this jury?

[41] This was a trial in which D gave evidence. That evidence was as follows. He was approached by C as to whether he wished to have sex with a woman at the Tay Street Tower, along with other men. He agreed. D said he was told to come down to the Tay Street Tower on the day of the meeting. He did what he described as a “normal patrol” down the beach to the Tay Street Tower, but when he arrived at the tower, on his account, things were more or less over. A and B were outside the tower on the grassed area near Marine Parade. C was on the ramp to the tower with his hand on the handle. The door was partly open and he was talking to persons inside. C said to him something like, “in you go”. When D entered he said he saw X sitting on the floor “sorting out her clothes”. D said X was not distressed. He claimed she said, “This wasn’t supposed to be the deal, it was meant to be one lifeguard, one policeman”. D said that X then said something like, “Well, you’re here now you might as well stay”. And on his account, he and X then had consensual sex. X said in her evidence that when D came into the tower, she said to him, “they’ve ruined my life anyway you may as well ...”, and sex then followed. It was common ground that thereafter the parties dressed and there was then discussion as to how X was going to get back to the SLSC. D said he agreed to, and did in fact take her to the SLSC on the back of his quad bike. X accepted that may have been so.

[42] D said that the next time he saw X was approximately a week later at a Crowded House concert held on 10 January, and that there was friendly conversation and contact between the parties at that time, in a manner one would not have expected had X been the victim of a recent rape involving D.

[43] This evidence, if accepted, or if it raised a reasonable doubt as to X’s evidence, squarely raised the possibilities that D was not an abductor; and that the admitted sexual contact between him and X was consensual, or that he reasonably believed it to be so, and that therefore the defence of consent applied.

[44] We do not have a transcript of what was said by D’s counsel in her closing address to the jury; nor for that matter do we have a verbatim record of the Crown closing.

[45] It seems inconceivable that counsel would not have raised these matters, and in her affidavit before this Court she said she did raise them. However, we note that in relation to the ground of appeal relating to counsel incompetence D’s trial counsel acknowledged that she did not expressly put to X a fundamental plank of D’s case, namely that he only arrived after the three co-accused had left the tower.

[46] Against this, we turn to the summing up. The Judge correctly put to the jury that they were to proceed on the basis that these were separate trials on each count relating to each accused, and that they were merely being tried together out of convenience. The Judge said, “You consider each accused individually”. The Judge also told the jury in his general remarks that they were to consider the addresses by counsel. He said, “they are not in any direct sense evidence, but they are the way in which counsel invite you to view their case.”

[47] On the abduction count there is no complaint with the Judge’s direction as to the elements of the offence: that there had to be a detention; without consent; and with the intention of sexual intercourse. Nor is there any complaint that the elements of sexual violation were not correctly put.

[48] As to D, the Judge said:

The Crown case is that the detaining really began from the time the complainant entered the tower that day until she left. The Crown say that each accused played a part, whether mere presence by a door, by preventing her from leaving, or by putting on the handcuffs, or by remaining on the balcony preventing her from leaving the tower, or as a lookout.

[49] The Judge directed the jury that:

The Crown case is that [D] was outside on the deck and that was a potential escape route, and that he was preventing her from leaving that way and that he was acting also as a lookout.

[50] The Judge said that the Crown case against D was that he was a party. He said:

A lookout in such circumstances can be a party if they know what is going on inside, they know that there is an unlawful detention without consent, and they do something to help, that is they are there to warn others of someone approaching.

[51] In relation to the count of sexual violation, the Judge said:

[D’s] evidence, if accepted, is again that this was sexual intercourse with [the] complainant consenting. He says [there is] no question of his belief on reasonable grounds that she was consenting, and of course if you think his evidence were truthful or might reasonably have been truthful then he would be not guilty.

[52] The Judge went on to say:

... you will need to consider whether he believed on reasonable grounds that she was consenting, and this is because of what the complainant says she said to him after the other accused had intercourse with her .

[53] When he came to deal with D’s case the Judge said, and significantly it was by reference to what counsel had said:

Finally, Ms Adams for [D]. She said that when [X]’s evidence was analysed it could not be true and that you should accept [D’s] evidence as truthful supported by his character witnesses. He said [X] in evidence was in control of herself and the situation, she was assertive and that this matched [D’s] evidence that she seemed to be in control, telling him what to do at the tower, consistent with her personality. Her confident demeanour was in contrast with what she claimed - or the way in which she claimed - she was in the tower. She said there were a number of reasons why she was not truthful. She mentioned it was inconceivable that this setting would be chosen for a gang rape. Secondly, it was not credible her claim she was going to lunch. She did not take her handbag which was not credible, she said, if she had been going to lunch. She said that she made no enquiry when she got to Tay Street. She made no resistance or calling out in the tower which did not match her personality. She mentioned the handcuff evidence. She mentioned the bike ride home - wanting a bike ride home with someone who had just raped you was inconsistent, she said. She said Ms Judson [X’s fellow employee, who gave evidence at the trial] had noted nothing about [X] afterwards, after the incident relating to her health, that

she had returned to work on the same day, that she had failed to go to the doctor, that she had not told Ms Judson, and Ms Judson had noticed nothing, that she had professional contact with [C] afterwards which was inconsistent, that it was two and a half weeks before she left for Auckland but in the meantime carried on as normal, that she did not confide in Mr Parkinson, her entry in [A’s] notebook and the Crowded House concert. She said all of these were factors upon which you should reject her evidence. She said that [D] was co-operative and answered all of the questions. She did say that at the end, if you have a doubt, then acquit. You will recall me saying to you that it is not a question of having a doubt, the Crown must establish it beyond reasonable doubt, and so that would not be a correct categorisation of the law. If you kept what I have said to you in mind you will not go wrong.

[54] In our view this summing up was deficient, in that it did not fairly put the defence case. In our view Mr King correctly put his finger on the heart of the problem when he submitted to us that “[D’s] defence was simply rolled in with that of his co-accused”. The defence cases were treated as essentially one and the same. Indeed the Judge said at [17] of his summing up:

The case for the accused is that none of this happened in [the way suggested by X] at all. (Emphasis added.)

[55] The Judge was required quite distinctly to isolate out D’s defence, and in particular to emphasise that it was on a different footing from those of his co-accused (although it overlapped in some respects). Factually his assertion was that he did not arrive until after whatever had occurred between his co-accused and X had taken place. If that were true, he could not have been party to any abduction. When he entered the tower, X was on her own. There were no handcuffs, as X confirmed in evidence. He had not seen what had gone on beforehand, so even if his co-offenders had done what X said they did, he would not have known that. D’s case was that, in the light of that, her comment to him indicated that she consented to sex with him or at least led to his reasonable belief that she was consenting. This critical aspect of the case that D was not part and parcel of the initial abduction and violations was simply not put, at all, let alone with the relevant evidence drawn to the attention of the jury.

[56] In New Zealand, a finding that the trial Judge failed to adequately put the defence case to the jury will normally result in a new trial (R v Maney CA116/99,

21 October 1999), affirming R v Hopkirk (1994) 12 CRNZ 216).

[57] The relationship to a miscarriage of justice was put in the following terms by the English Court of Criminal Appeal in R v Badjan (1966) 50 Cr App R 141 at 144:

Where a cardinal line of defence is placed before the jury and that finds no reflection at any stage in the summing up, it is in general impossible, in the view of this Court, to say that the proviso [that is, not interfering with the verdict unless there is a substantial miscarriage of justice] can properly be applied so as to say that the conviction is secure in those circumstances.

[58] Just so in this case. The distinct defence of D was not put at all. The conviction must be set aside, and we direct a new trial in the case of D.

[59] This holding makes it, strictly speaking, unnecessary for us to consider certain other appeal points raised by Mr King. There is an overlap in the area of “fresh evidence” with Mr Squire QC’s submissions, and we will deal with that issue in that context. There is also commonality of appeal grounds under the heads of “inconsistent verdicts” and “trial counsel incompetence”. We will deal next with the issue of trial counsel incompetence, because it also has some bearing on the alleged inconsistency of the verdicts.

Trial counsel incompetence

[60] This ground of appeal - common to all the appellants - asserts that D’s trial counsel (not Mr King) acted inappropriately and without his instructions in producing to X, during the course of cross-examination, police handcuffs and an object. There were other allegations by D that counsel did not adequately put his case, but our conclusion on the first ground of appeal makes it unnecessary to deal with them.

[61] D deposed that when the object was produced it was “an extremely dramatic moment in the trial”; and trial counsel confirmed that X’s response was emotional.

[62] There is no doubt that this was a dramatic moment in the trial. After both items had been produced to her, X said, “Excuse me Your Honour I could do with a break”, and there was in fact a 25-minute break in the taking of her evidence to enable X to compose herself.

[63] Because there was here an allegation of trial counsel incompetence affidavits and a waiver were filed, in the usual way. We confirm that we gave leave for such a course to be followed.

[64] In his final address, the Crown prosecutor submitted that X was “reliving the event” when she saw the handcuffs and object produced in evidence, and he said that that was “credible evidence by her”.

[65] How this production of these two items - and in particular the object - came about was the subject of some contention in the affidavits. Trial counsel maintained that she believed that she was acting in furtherance of agreed defence tactics. Other counsel claimed that there were no such agreed defence tactics.

[66] As to any discussion with D, trial counsel accepted that she did not

“expressly advise D” that she intended to produce these items.

[67] D’s concern under this head on the appeal was that the issue of the object was not directly relevant to his case, and indeed might be seen by the jury as linking him with his three co-accused, when his whole defence, as we have already discussed, was that his situation was quite different from that of the other men. On his version of events he was not in or near the tower when the handcuffs and an object were said to have been used and unaware of their use.

[68] For C (who of course did not face a charge under this head) Mr Squires said that the “spill-over” effect, if we can thus term it, for his client was considerable. He said it would be quite unsurprising in the circumstances if the jury was disposed to feel considerable sympathy for X and considerable antipathy towards the accused who the jury “would have seen as being responsible (through their counsel) for what might have been considered an act of gross insensitivity.” He further said:

Given the nature of the trial and the matters in issue, it is submitted there is a grave risk that the actions of counsel for [D] may have engendered in the minds of the jury such a degree of antipathy towards the accused and the evidence they gave at trial claiming their innocence, that the jury may have been persuaded to discount what they said in their defence for reasons other than its intrinsic merit. In the result the issues of credibility as between the complainant and the accused may not have been fairly judged or assessed by

the jury, or at least there is a real risk of that having occurred, and the risk of there having been a miscarriage of justice accordingly cannot be discounted.

[69] We approach this issue on the footing of whether this action by D’s then counsel could have caused or materially contributed to a miscarriage of justice. (See Sungsuwan v R [2005] NZSC 57 at [70].)

[70] In our view, it did not do so. First, it is somewhat obvious that the two accused directly affected by this production were not convicted on the counts relating to the object: there was in fact no miscarriage of justice on this count. And, it may be that the production of the object in particular contributed to that outcome. Depending on how it viewed the evidence, the jury might have thought that if the object had been used harshly (as X suggested) that she would necessarily have had to enlist medical help. But she did not do so. More generally, it is hard to see why action by counsel for one accused would be seen by the jury as reflecting badly on the accused for whom she did not act.

[71] As to any spill-over consequences for C, it is difficult to see that the production to the complainant of the handcuffs and object necessarily linked him with A and B. We are not satisfied there was such prejudice under this head as to lead to a miscarriage of justice in relation to him.

[72] This ground of appeal is dismissed.

Inconsistent verdicts

(i) Introduction

[73] Counsel for the appellants each argued that the verdicts returned in this case by the jury were inconsistent, and that they should all therefore be set aside on that account.

[74] The argument is that the events at Tay Street Tower were all part of a single transaction. The acquittal of A and B on the counts against them of the use of an object to sexually violate X meant that the jury must have disbelieved X, and that

therefore everything she had to say should be set to one side, and that the verdicts could not be sustained.

(ii) The law as to inconsistent verdicts

[75] The general principle has long been that a conviction is unsafe if no reasonable jury, properly instructed, could have arrived at the conclusion which was in fact reached (R v Stone [1955] Crim LR 120 per Devlin J). The burden is on the accused to demonstrate that the only explanation for the inconsistency must be that the jury was confused or adopted the wrong approach, thus making the verdict unsafe. Only this can warrant the intervention of an appellate court, and generally there ought to be a curial reluctance to interfere with a jury verdict (R v H [2000]

2 NZLR 581 at 589 per Keith J).

[76] A prima facie inconsistency is never enough to set aside a verdict. Once a prima facie inconsistency is established, the Court must inquire whether there is any rational or logical explanation for the inconsistent verdict. Sir John Smith has stated the requisite approach admirably:

[T]he jury system is workable only if we assume that, in the absence of any evidence to the contrary, the inscrutable jury has behaved rationally. So where verdicts are alleged to be inconsistent, the court must consider whether there is a rational way in which the jury could have arrived at the two verdicts and, if there is, to assume that this was the path which the jury followed ... The jury is not, of course necessarily saying by its differing verdicts that some allegations are untrue, only that they are not sure that they are true. (In a case note to R v JK [1999] Crim LR 740 at 741).

[77] Time after time in appeals to this Court it is argued, as counsel argued here, that because the jury must have “disbelieved” a witness to acquit on one count, it was inconsistent to rely on her to convict on another count. The argument is utterly fallacious; there may be all sorts of valid reasons why the jury may be convinced by a witness on one count but not on another. To put this another way, there is no reason why credibility must be static. As was said in R v G [1998] Crim LR 483, “A person’s credibility is not a seamless robe, any more than is their reliability.” It is not necessarily illogical for a jury to be convinced as to the credibility of some

aspects of one person’s story, but not as to others, a fortiori where it is convinced, but not beyond a reasonable doubt.

(iii) This case

[78] The sexual charges on which the appellants were convicted involved physical conduct of a kind (that is sexual intercourse, digital penetration and oral sex) which they acknowledged had occurred (albeit that A acknowledged only one act of intercourse and not two as alleged by X). If the jury was looking for support for X's narrative, they may have seen these acknowledgements as material. Further, the alleged assault with the object might be expected to have caused injuries which could have been independently verified if there had been a prompt complaint. In this respect the absence of supporting evidence as to the alleged use of the object may have left the jury unsure about this count.

[79] As well, we are not in a position to know what the jury made of the incident at trial when an object was produced to X by Ms Adams. Conceivably some aspect of that incident (whether it related to the physical dimensions of the object or X's dramatic response) may have left the jury with a doubt as to X's evidence on this point.

[80] The burden on the appellants was that they were required to show that the verdicts are so inconsistent that they cannot stand together, being logically inconsistent in the sense that a reasonable jury, applying their minds to the facts, could simply not have reached the verdicts they did in fact reach. We are not satisfied that burden has been discharged.

[81] This ground of appeal is accordingly dismissed.

Additional grounds of appeal against conviction by C

(i) Introduction

[82] In addition to replying on the grounds of appeal of inconsistent verdicts and trial counsel error which we have dismissed, on C’s behalf Mr Squire raised a

number of other grounds, some of which sought to impugn the prosecutor’s conduct; further attacked the summing up; and there was an application to adduce fresh evidence.

[83] We note here, before proceeding to the more substantial points, some miscellaneous matters.

[84] Mr Squire placed some reliance on R v Manhaas CA228/98 3 September

1998. That case was not a decision on inconsistent verdicts, it was concerned with a “single transaction”, and we do not consider it appropriate to adopt the approach taken in that case here.

[85] Mr Squire submitted that the trial Judge ought to have directed the jury that if it rejected X’s evidence on one point, that may affect her credibility on others. In our view that is self-evident, and did not need to be explicitly stated.

(ii) Summing up: the credibility issue

[86] As Mr Squire rightly said, the success of the Crown case had to depend on the jury accepting the truth of the evidence of X. Unsurprisingly therefore, in its closing address, the Crown raised various matters suggesting that X was a witness whose evidence should be believed in this particular case.

[87] One of the factors relied on by the Crown as being of importance in this context, was that it said that if the defence case was to be accepted the jury would have to conclude that the complainant had “... welcomed intercourse in degrading circumstances”, and that it was not credible that she would consent to intercourse with four or five men, most of whom were strangers, in the particular circumstances alleged. Mr Squire said, for instance, that the prosecutor had put it to the jury that if the complainant had been interested in group sex “... why would she chose so degrading a place, why not a motel?”

[88] The complaint is that not only was that submission made to the jury by the

Crown, it was repeated by the trial Judge in his summing up. This despite the fact

that, Mr Squire said, (a) there was no evidence before the jury to support the fact the complainant’s moral disposition was as the Crown implicitly represented it to be; (b) no such evidence could have been led by the Crown without leave first having been sought and obtained from the trial Judge pursuant to s 23A of the Evidence Act

1908; and (c) because the issue of the complainant’s credibility was put in that way to the jury for the first time in the Crown’s closing address, the accused (and in particular C) were prevented (subject to leave) from putting before the Court evidence which may have led the jury to a contrary view about the complainant’s moral disposition as the Crown had implicitly represented it to be.

[89] To put this complaint more shortly, it is really that the spirit and intent of s 23A was taken advantage of, while the defence had an inability to respond, because of the statutory prohibition.

[90] Mr Squire submitted that it was incumbent upon the trial Judge, at least, to direct the jury that it should ignore the submission that was made. He said the jury should have been told not to speculate about it, and most importantly it should not draw the inferences the Crown had invited it to. But it is said, the trial Judge gave no such direction. Rather, the Judge repeated the Crown submission without comment in his summing up when summarising the Crown case for the jury. This, Mr Squire said, could well have created in the jury’s mind an impression that this was a submission that it was open to the jury to accept.

[91] We should perhaps here record that Mr Squire was not the only counsel to make this kind of submission. In his submissions for D, Mr King made a like complaint, although as it transpires we did not have to reach this point in dealing with D’s case. Mr King put the same sort of point this way:

The defence is not permitted to ask questions or lead evidence relating to the complainant’s experience in sexual matters with persons other than the accused, by the same token it is submitted that the Crown should not have been permitted to portray her as a person who would never have engaged in such acts.

[92] Mr Stanaway responded to these criticisms of Mr Zarifeh (who gave the closing address for the Crown at trial), and the trial Judge, in this way. First, he said

that in assessing the competing cases of the Crown and the defence the jury had to decide what they made of the complainant, and in particular her credibility. He said it was proper for the Crown in closing arguments to counter the defence contentions in relation to the complainant:

In doing so there was no breach of the intent or spirit of s 23A of the Evidence Act 1908. The jury was not engaged in making an assessment of the complainant as a person. Its focus was as it had to be on the events on the day in question in the Tay Street Tower.

[93] Mr Stanaway said the defence could not have been taken by surprise by the Crown submissions. He said this “theme” of the Crown case was apparent from the outset. In the Crown opening address doubt was cast over D’s claim to the police that he had had what the Crown termed “consensual intercourse with a complete stranger who had already had sex with three other men she barely knew”.

[94] Mr Stanaway further submitted that in a case containing allegations of rape by five men, where the defence was one of consent, the Crown’s closing comments were appropriate and did not require any direction by the trial Judge.

[95] We are quite unable to see force, let alone something rising to the level of a miscarriage, in the appellants’ submissions under this head. It seems to us that both the Crown and the defence were inviting, and appropriately so, the jury to consider the probabilities of matters unfolding as they were alleged to have unfolded. We do not for one moment wish to be taken, in making that comment, as suggesting that probabilities would ever be enough in a criminal prosecution. The jury has to be sure. But an assessment of the likelihood of something occurring in the manner alleged is always a relevant part of the jury assessment.

[96] Finally, under this head, we deal with another concern which was dealt with at the oral hearing before us, although it had not been addressed in the written submissions.

[97] Mr King complained that a remark had been made by Crown counsel who made the closing address (Mr Zarifeh) that the “Crown case was that [X] was the

victim of a callous pack rape, on the defence case that she was a slut who welcomed sex with four men she barely knew in a sleazy and unromantic location.”

[98] Mr King had needed to confirm with the Crown that this was said, and was not able to do so until the morning of the hearing before us.

[99] The submission was then advanced, both by him and Mr Squire, that (as Mr Squire put it) giving the jury a choice of “convict or say she is a slut” was quite improper; that this added an inappropriate “moral dimension” to the trial that should have been avoided; and that the Judge should have given a stronger response in his summing up.

[100] We observe first that Mr Zarifeh very correctly confirmed his use of the word “slut”, and that he should not have used it. That, however, is not the end of the inquiry.

[101] What the Judge sensibly did, was to distinctly sanitise what had been said. For instance, he said:

[Mr Zarifeh] said, the defence was effectively saying, why didn’t she see this coming, going on a trike to Tay Street Tower. She had a reason to do so, she was going to lunch, she saw a police car and in her mind she was going to lunch with a policeman, and he said, well, so what if she didn’t see it coming, this was broad daylight and a policeman, and in any event does that mean she consented if she did not see it coming. If she was planning group sex she said she would expect to be prepared and mention of the condoms. As far as screaming and fighting was concerned, he said that lack of this did not suggest that she was consenting in a small tower with five men, you would hardly expect her to scream or fight in such circumstances.

[102] Crown counsel over-reached in the use of the word “slut”, but the rest of the sentence did pick up the essence of the stance of the respective parties. We do not consider this factor, by itself, or even co-jointly with anything else said has contributed to, or caused, a miscarriage of justice.

[103] This head of appeal is accordingly dismissed.

(iii) Summing up: the consistency direction

[104] The complaint here is that in the course of the trial Judge’s summing up, the Judge dealt with the evidence of a Ms Judson, who was employed along with X to run the radio station caravan at Mt Maunganui. Ms Judson’s evidence was that shortly after the events at the Tay Street Tower, X unexpectedly “took off”, leaving her to effectively manage things at the caravan by herself. Ms Judson gave evidence that when X returned she was in the company of another man who stayed with her and X at the motel they shared “for a few days”. According to Ms Judson, X returned to work but when she did she did not seem to be happy and quite withdrawn.

[105] In dealing with that evidence in his summing up the Judge said:

What she [Ms Judson] said was her personality change, that she [X] had become withdrawn and was not her normal bubbly self. Well, that evidence is relevant in the sense that it is at least consistent with [X’s] evidence that she has suffered a traumatic event.

[106] The Judge warned the jury to be:

... cautious with this evidence. It is not independence [sic] evidence that the events occurred. It is not independent evidence that X’s change in personality if you accept it occurred was caused by what she says was the sexual assault on her, but if you accept it, it does show some consistency and is relevant in that sense.

[107] Mr Squire’s complaint was that the change in X’s personality could only be materially probative evidence and show “consistency” if the change inferentially proved or tended to prove that what occurred in the Tay Street Tower was without X’s consent. The argument is that the evidence could only be regarded as evidence of consistency if the jury was satisfied that the change in personality was due to events in the Tay Street Tower as X complained they occurred. It is said that this direction “may well have been a telling factor in the jury’s assessment of the credibility of the complainant”.

[108] Mr Stanaway submitted that the Judge’s direction on this issue adequately and appropriately dealt with this issue. The evidence of the observed change in

personality could be consistent with a traumatic event as described by the complainant, although caution was required with this evidence because there could have been other reasons for the change, and it was not independent evidence of the alleged offences. Mr Stanaway accepted that the direction could have been more clearly put, if it had read something along the lines “but if you accept it was, it does

_{show some consistency and is relevant in that sense”.}

[109] The first point to be made here is that it is not inconceivable that the remarks complained of in [106] have been inaccurately transcribed. However even as it stands, and although it is a somewhat jumbled sentence, we think it does adequately convey what needed to be conveyed to the jury. We think it was made clear enough to the jury that the observed change in X (if the jury in fact accepted that change) might not necessarily have been caused by the alleged sexual assault and hence there was a need for caution.

[110] We do not consider there has been a miscarriage of justice under this head, and accordingly this appeal ground is dismissed.

(iv) Fresh evidence

[111] Mr Squire submitted that there is admissible fresh evidence which, had it been before the trial jury, would in all likelihood have resulted in different verdicts being returned against C on the two counts on which he was convicted.

[112] C sought to have received as evidence, affidavits from several deponents relating to his own case, and Mr Squire also sought to rely on affidavits filed in support of D’s appeal.

[113] Broadly, the evidence in the 11 affidavits in question falls into two categories:

(a) evidence relating to the observation of X at the Crowded House concert, and her interaction there with the appellant, D;

(b) evidence relating to X being seen in and about the SLSC on social occasions at which D and C were present at times after the alleged incident at the Tay Street Tower.

[114] Mr Squire’s endeavour to “coat-tail” on D’s appeal was made on the basis that “it cannot reasonably be supposed it would have had anything other than a significant impact on the jury’s assessment of the credibility of X”. He said that because credibility had been so finely balanced at trial “there is every reason to believe that had this evidence been given at trial, different verdicts on the counts on which the accused were convicted might have eventuated”.

[115] As to the nature of the Crowded House “evidence”, after the trial Miss Percy instituted further inquiries. She was associated with one of the accused. This led to affidavits from Mr Mangnus, and Mr Tumey. Both affidavits purport to confirm the evidence given at trial by D of meeting the complainant at a Crowded House concert in Tauranga on 10 January 1989, and a physical interaction between the two of them on that occasion. X, in her evidence, had said that she did not attend a Crowded House concert that summer; indeed she said she had never been to a Crowded House concert. It is common ground that the Crowded House concert took place some five days after the alleged incident in the Tay Street Tower. It was established that the radio station X worked for had some involvement in the promotion of this concert.

[116] The Crown submitted that this evidence is not fresh, credible, or cogent in terms of the tests laid down by this Court in R v Bain [2003] NZCA 294; [2004] 1 NZLR 638.

[117] We agree. This evidence could with reasonable diligence have been called at trial; indeed it was obtained with relative ease post-conviction. D’s claim that he was prevented from pursuing this evidence because he might have breached his bail conditions is disingenuous. The conditions of bail following depositions clearly permitted contact by counsel or by independent agents.

[118] Freshness aside, we have distinct reservations about the reliability and cogency of this evidence. First, recalling the details of this evidence after a 16-year gap itself raises a credibility issue, given that the encounter between D and X, if it

occurred, would not have been a particularly noteworthy event at the time it occurred. Secondly, and more importantly however, what happened here was a post- conviction re-evaluation “obtained” in a less than careful way from friends and acquaintances. Mr Mangnus had previously indicated he was quite unable to assist the appellant on the issue of what happened at the Crowded House concert. But then there was an unfortunate degree of interaction between the maker of one statement and the other, with the first statement maker asking the other to read his draft statement and then prepare his own statement “but with some differences”.

[119] Inevitably, on an application of this kind this Court has to consider the likelihood of statements obtained under these conditions having an impact on a jury. Far from a jury being impelled in the direction of the appellant’s case, in our view there was a very distinct risk for the appellants that the jury would see these matters quite the other way, and that this “fresh” evidence would harm rather than assist the appellants’ case.

[120] As to the fresh evidence relating to the SLSC, this turns on affidavits from Mr Akroyd, Mr Pearson and Mr Edmundson. Mr Akroyd deposed that he can recall X socialising at the SLSC some time after 7 or 8 January 1989, when he returned to Mt Maunganui from a holiday near Gisborne. He said she was socialising at the club in the same way as she had been over the Christmas/New Year period. She appeared to be enjoying herself. Both C and D were said to be present around the SLSC at this time. Mr Pearson deposed that he could recall X being at club functions on a number of occasions up until around the end of January 1989.

[121] The argument in this instance is that after the events at the Tay Street Tower, X maintained a loose social relationship with members of the SLSC (including C and D) and that for much the same reason as the evidence relating to the Crowded House concert, this evidence could well have proved significant and even decisive.

[122] The Crown submits that the evidence relating to X’s presence at the SLSC after the Tay Street Tower incident is not fresh, and that it could have been led at trial with reasonable diligence by the appellant. This is because Mr Pearson had made previous statements to the police that were disclosed to the appellants. His

fresh evidence in some ways contradicts his initial statement. Mr Akroyd was known to both D and C, and was available to them as a witness. Mr Edmundson actually gave evidence at depositions and at trial. When questioned in evidence-in- chief, Mr Edmundson was unsure of his recollections. Further, the evidence of Mr Akroyd is in some ways in conflict with the evidence of D and Mr Edmundson. According to Detective Inspector Clement in his affidavit, both D and Mr Edmundson said that they did not see X at the SLSC after the incident.

[123] The Crown submitted that this evidence too suggested post-conviction re- evaluation, and that it would not have had any material impact if it led at trial.

[124] We are not disposed to have regard to this evidence. It is not fresh as required by Bain; in any event it too is problematic and would we think not have had any material impact, if led, at trial.

[125] This appeal point too is dismissed.

Appeals against sentence

(i) Introduction

[126] Ronald Young J sentenced the appellants based on the 1989 sentencing level for these crimes. At that time the maximum penalty for rape was 14 years imprisonment, which is significantly less than the current maximum of 20 years imprisonment.

[127] The Judge said that he was “satisfied” that Messrs A, B and C planned to use this young woman’s interest in A to get her to the Tay Street Tower and rape her. The Judge said:

These events were clearly pre-planned by the three of you at least. It involved of you taking a mattress down to the Tay Street Tower. It involved you [C] spreading the word that consensual group sex was going to take place. It involved you [A] and [B] arranging to be at the tower at a prearranged time with [C]. The young woman was taken down by the beach

by you [C]. She thought she was going to meet [A] and then go off to lunch. You knew you were taking her to the tower to be sexually violated.

[128] The Judge found the aggravating features to be:

• That this was a pre-planned pack rape.

• Abduction was involved, including the use of handcuffs.

• Five men were present at the same time, and there were other sexual indignities beyond rape.

• A and B, and to a lesser degree C, were in positions of trust in the community. That public trust was abused. In A’s case there was the additional endeavour on his part “to cover up”. This latter point involved evidence relating to A going to the motel on divers occasions after the rape to speak to X and in effect cower her, and frighten her off speaking about the incident.

[129] The Judge saw the mitigating features to be the lack of previous convictions of these men, and their hitherto good character.

[130] In the result, having identified A as the “ring leader”, and the fact that he raped X twice, the Judge started with his case. He took a starting point “ordinarily in the range of nine to ten years” and made a deduction for the lack of previous convictions and otherwise “to date blameless life” to reach a figure of eight and a half years imprisonment. The concurrent terms which we have already noted were imposed on the abduction and the lesser sexual violation.

[131] The Judge dealt with B by indicating that he would take a sentence of nine years, reducing it to eight years on the single count of rape, with concurrent terms of four years on the sexual violation and three years on the abduction count.

[132] C was seen to be less culpable than A and B, and a starting point of eight years for the rape was reduced to seven years, with three years concurrent on the charge of abduction.

(ii) Counsel’s submissions

[133] For A, Mr Nabney did not challenge the starting point taken by the Judge. He submitted that the period allowed by way of reduction was “insufficient to properly reflect A’s good character both before and after the commission of these offences”. He further submitted that by giving insufficient weight to those factors the Judge imposed a sentence “that was more commensurate with persons being sentenced who had significant previous convictions or were members of gangs that effectively were engaged in criminal activity”. He referred to R v Misitea [1987]

2 NZLR 257 where a woman was held for a period of some hours overnight and was repeatedly raped, indecently assaulted, doused with petrol, urinated upon, and a bottle was used upon her in an indecent manner. On a Solicitor-General appeal, a sentence of 10 years was imposed in that case, on the ring leaders.

[134] For B, Mr Mabey QC responsibly proceeded on the footing that the trial Judge had in fact taken into account all relevant mitigating factors. But he too said insufficient weight had been given to them. He referred us to R v Carruthers CA401/94 10 April 1995, a decision of a Full Court of this Court. There there was an appeal based on an alleged failure to recognise the appellant’s circumstances during the 13-year period between offending and conviction. This Court recognised that due regard must be had to the lapse of time. It said:

Where in the years that have intervened the offender has demonstrated that he has overcome his earlier proclivities, and has settled into a normal and law-abiding life, that fact must be recognised. For events have shown that one of the objectives of sentencing, deterrence of the specific offender, is unnecessary. The man to be sentenced today is not the same man who committed the offences.

[135] Whether this offending can now be said to be one-off depends on the ultimate outcome of certain other proceedings.

[136] Mr Mabey also urged on us the practical reality that life for B in prison is inevitably going to be more daunting than for other prisoners He is a former police officer. He is already segregated from main-stream prisoners.

[137] As to C, Mr Squire suggested that the Judge had over-emphasised the aggravating factors, and had not given sufficient regard to mitigating factors. He submitted that the appropriate range for the rape charge would have been a starting sentence of between six and a half and seven years imprisonment, which might well have involved an actual sentence of five and a half to six years imprisonment.

(iii) Discussion

[138] Under the statutory formula in force in New Zealand, the essential question in appeals of this character is whether this Court considers that “a different sentence should have been passed” (see s 385(3)). Those words might support two different interpretations. On a more liberal view it would be open to the Court to consider the sentence in question completely afresh so that if, in the Court’s view, what is an appropriate sentence was different from the sentence appealed from, the Court could re-sentence accordingly. This would involve an unlimited judicial discretion to modify the original sentence. That view however has not prevailed. The discretion to vary the sentence is not unfettered; this Court does not embark upon the sentencing afresh nor substitute its own opinion for that of the original sentencer. There must be an error vitiating the exercise of the original sentencing discretion. In short, this Court must proceed on an “error principle”. One of the better explications of this approach is to be found in a decision of the High Court of Australia - Griffiths v R (1977) 137 CLR 293 per Barwick CJ at 308 and following.

[139] It follows that to establish that an error was involved in the imposition of the sentence, it must be shown that in sentencing the trial Judge has indeed made an error whether intrinsically, or as a result of additional material submitted to the Court of Appeal on the appeal. The error principle was framed for a review of sentencing discretion for cases in which the sentence is unreasonable, or has not been fixed in the due and proper exercise of the Court’s authority.

[140] It is only if an error of that character is involved that the Court should re- exercise the discretion. If it should come to that, the Court will then form its own view of the appropriate sentence to be passed. If in its own view, it “thinks that a different sentence should have been passed” the original sentence will be quashed and a new sentence imposed.

[141] The failure to adequately appreciate these constraints on the jurisdiction of this Court leads to a great many fruitless appeals, and with a consequential wastage of public resources.

[142] Here, we are not persuaded that the Judge adopted inappropriate starting points, having regard to the sentencing patterns at the relevant time. He clearly took into account the relevant mitigating factors. The precise weight to be accorded to them in the context of the particular case was appropriately a matter for him, and has not been shown to be wrong. The invitation to interfere in the sentences in this instance could fairly attract the opprobrium of “tinkering”.

[143] The appeals against sentence of A, B and C are dismissed.

Suppression orders

[144] The preparation of this judgment has been complicated by the fact that A and B face other charges on unrelated matters, which have not yet come to trial; and in the case of one appellant (D) we are ordering a re-trial. It is of the greatest importance that the fairness of those future trials not be imperilled.

[145] We have therefore been driven to the expedient of (a) adopting letter designations for the parties before us, and (b) in one count, describing an “object” allegedly utilised to effect a sexual violation by that term, rather than its actual physical description.

[146] For the record, the letter designations of the appellants follow the order in the indictment.

[147] There will be orders suppressing the names or any particulars likely to lead to the identification of the four appellants until the further order of this Court.

[148] We have also been driven to use a letter designation in the case of C, who does not face a future trial, and whose conviction and sentence we have upheld. The usual principle of open justice would normally permit publication of his name and his wrongdoing. The difficulty is that to do so would likely disclose the identity of the other appellants. It is for that reason that he is presently identified by a letter designation also.

[149] It may be that the media might take the view that, C’s case having been concluded, and his conviction and sentence upheld, yet he does not face further charges, that the protection afforded to him in this judgment goes too far. And it may even be thought that this redacted judgment itself goes too far. If so, a formal application can be lodged and the Court will hear argument, in the usual way, as to whether publication of further particulars should be allowed, at 9am on 3 May 2006. Any such application is to be filed in this Court, and served on counsel for the appellants by 5pm on 20 April, 2006.

[150] In the meantime, this judgment is being distributed in the usual way, and the media (and the public) are reminded of their strict obligation to observe the suppression orders which this Court has made.

Solicitors:

P B Devoy, Tauranga for Appellant B

Surridge & Co, Wellington for Appellant D Crown Law Office, Wellington