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The Queen v Gunbie [2007] NZCA 186 (9 May 2007)

Last Updated: 22 May 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA234/06
[2007] NZCA 186

THE QUEEN

v

STEVEN BRENT GUNBIE

Hearing: 5 March 2007

Court: Chambers, Gendall and Heath JJ

Counsel: A D Couchman for Appellant
P K Feltham for Crown

Judgment: 9 May 2007 at 10.30 am

JUDGMENT OF THE COURT

A An extension of time for appealing is granted.

B The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

A shooting in Silverdale

[1] On 12 February 2005 at Silverdale, a town north of Auckland, Steven Gunbie, the appellant, fired his pistol in the direction of a car driven by Brian Callahan. The Crown contended that the bullet fired from the pistol penetrated a window on the passenger side of Mr Callahan’s car before exiting through a window on the driver’s side. Both windows shattered. Mr Callahan narrowly missed being hit by the bullet.
[2] The Crown charged Mr Gunbie with three offences. The first was attempting to murder Mr Callahan. The second charge, as an alternative, was that Mr Gunbie, with reckless disregard for the safety of others, discharged a firearm at Mr Callahan. The third count in the indictment was that Mr Gunbie was unlawfully in possession of a pistol.
[3] There were two main issues at trial. The first was whether Mr Gunbie had a murderous intent. The jury found him not guilty on count 1, so were obviously satisfied there was a reasonable possibility he did not have such intent.
[4] The second major issue was whether Mr Gunbie’s act of firing the pistol was done in self defence. His account was that he fired the pistol in self defence, having seen Mr Callahan point a rifle out of his car window in his direction. The Crown evidently managed to exclude the reasonable possibility of self defence, as the jury found Mr Gunbie guilty on count 2.
[5] There was no dispute about count 3, notwithstanding Mr Gunbie’s plea of not guilty to it. The defence at trial accepted Mr Gunbie had been in unlawful possession of the pistol.
[6] Mr Gunbie now appeals against his conviction on count 2. The appeal was filed a day late. The Crown does not oppose an extension of time for appealing in terms of s 388(2) of the Crimes Act 1961. We grant an extension of time.

Issues on the appeal

[7] Mr Couchman, for Mr Gunbie, has raised three issues on this appeal.
[8] First, was some of the evidence in the trial inadmissible? The evidence in question was not given in examination-in-chief; it came in as part of answers Mr Callahan gave when being cross-examined. The evidence may broadly be described as allegations that on previous occasions Mr Gunbie had driven past Mr Callahan’s home and Mr Callahan’s girlfriend’s home, firing shots in the air. Other assertions relating to Mr Gunbie were also made, but, for present purposes, we shall refer to all of the disputed evidence as "the firing shots evidence".
[9] The second issue relates to certain instructions Mr Gunbie says he gave his then counsel, Mr Anderson, after the firing shots evidence came in. Mr Couchman asserts that Mr Gunbie instructed Mr Anderson to apply for a mistrial. Mr Anderson disputes that.
[10] The third issue is whether a miscarriage of justice resulted from the way in which the firing shots evidence was eventually dealt with.
[11] We shall deal with the issues in turn.

Was the firing shots evidence inadmissible?

[12] We shall first set out the evidence said to have been inadmissible. We shall then place that evidence in its trial context. Finally, we shall evaluate whether the firing shots evidence was inadmissible.
[13] Five passages of evidence comprise what we have called the firing shots evidence. They were:

Passage A

Mr Anderson asked Mr Callahan whether he considered it was a coincidence that he and Mr Gunbie had ended up together outside the muffler shop in Silverdale on 12 February. We should explain that it was the defence case that the meeting was not coincidental but was a result of Mr Callahan trying to locate Mr Gunbie with a view to either threatening him or shooting him or both. The relevant part of the cross-examination reads as follows (with the allegedly offending sentences italicised):

Q Is it a fluke in your mind that you just met Mr Gunbie that day?
A No.
Q Can you explain, please?

A He was looking for me. He had been past my family’s place shooting a gun from the motorbike. He was looking for me.
Q Were you looking for him?
A I didn’t have to go looking for him. He was looking for me.

Passage B

The second passage to which objection is taken came in the course of a lengthy cross-examination about an incident which had occurred just a week or so before, on 3 February 2005. We refer to the details of that incident below. It suffices to say at the moment that Mr Callahan had on that earlier occasion brandished a gun at the North Harbour Country Club in Dairy Flat, and had demanded to know whether Mr Gunbie was present. The passage in question reads:

Q What then was the gun for?
A To scare him like had been doing to my lady and kid, going past their house, firing a gun from his motor bike. How do you think they felt?

Passage C

Mr Anderson asked Mr Callahan some questions concerning his movements on 11 and 12 February. The answers revealed that he had been going back and forth between his place in Silverdale and his girlfriend’s place at Hatfields Beach, a seaside hamlet a little to the north. The passage to which objection is taken reads as follows (with offending passages again in italics):

Q Okay, right. On the morning of the 12^th being the date of incident with Mr Gunbie...
A At the time I was going back and forward to my girlfriend’s place and the shed [where Mr Callahan lived]. He was firing shots at both my girlfriend’s place and the shed. I was going back and forwards like a yo-yo and I can’t give you exact times, if that makes sense.
Q. Would it be fair to say that on the morning of the 12^th of February 2005, you were really worked up about Mr Gunbie? He had finally got to you?
A I wasn’t the one sitting outside the shop waiting for him. I didn’t go past his family and baby’s house shooting a gun. That thought never crossed my mind but it did on his because he did it. Do you think that’s all right?
Q (From the Bench) You don’t ask questions.
A He was asking me why I was going back and forward to my girlfriend’s.
Q (From the Bench) You were asked where you went and where you came from.
A I was going back and forward from my shed to my girlfriend’s two or three times a day trying to stop this clown from going past.

Passage D

This passage reads:

Q And this was a bit of a surprise to you, Mr Callahan, because you actually don’t like people standing up to you?
A I don’t like people who point guns at my head. I don’t like people going past my lady and baby’s place shooting a gun from a motor bike. I don’t like that. I don’t like people who steal my neighbour’s dogs, people who steal my neighbour’s cars and ram my neighbour’s cars. I don’t like that.
Q Is it you don’t like the fact he’s done things or done them against you?
A I don’t like it when he goes past my lady and baby’s house and shoots a gun from his motor bike when he knows I don’t live there. I don’t like that. Am I supposed to say "it’s all right" because it ain’t right.

Passage E

The last passage reads:

Q You are a person who fights your own battles, would you accept that?

A Yes. I try to sort things out.
Q You tried to do it at the Country Club, whatever battle that was?

A That was to try and stop him going past my lady’s place shooting a gun.

[14] Mr Couchman’s concern was with respect to Mr Callahan’s assertion, to be found in all five passages, that Mr Gunbie had on an earlier occasion or earlier occasions driven past Mr Callahan’s place and Mr Callahan’s girlfriend’s place, firing a gun. In addition, there were other allegations in passage D concerning "people" who steal dogs and cars and ram cars. It was unclear in context whether Mr Callahan was asserting Mr Gunbie had done those things or whether he was merely explaining the sorts of people he did not like. This particular point was not explored at all in the evidence - no one referred to it again. The real concern is the constant repetition of the assertion of Mr Gunbie having driven past, firing shots in the vicinity of or in the direction of, the two places of residence.
[15] Mr Couchman’s complaint was that the firing shots evidence was inadmissible as it was prejudicial information about the accused which had no proper relevance to matters in issue in the trial.
[16] In order to assess the admissibility of this evidence, we must place it in context. The first point we make in this regard is that the Crown did not lead the firing shots evidence; it all came in during Mr Anderson’s cross-examination. That, of course, is not decisive, but it does have some relevance, as we shall show. Mr Callahan’s evidence-in-chief had almost exclusively been limited to the events of 12 February.
[17] The defence strategy, as is obvious from the transcript and as is confirmed by Mr Anderson in his affidavit, was to blacken Mr Callahan as much as possible. This was necessary from the defence perspective for two reasons. First, the defence had to explain why Mr Gunbie had a pistol on him on 12 February. Secondly, there was no dispute that Mr Gunbie had fired that pistol, if not in Mr Callahan’s direction, at least near to him. If self defence were to be tenable, the background to the incident had to be explored and Mr Callahan had to be portrayed as the aggressor. As Mr Anderson put it, the aim was to show Mr Callahan "as extremely aggressive and irrational", something he believed he had shown through his cross-examination of him.
[18] To this end, Mr Anderson, in his lengthy and very effective cross-examination, dealt with the history of the relationship between Messrs Callahan and Gunbie. It became very clear that there was a long-standing feud between the two men, the origins of which remain unclear. Mr Anderson cross-examined Mr Callahan at some length about his prior convictions. He realised that this would result in Mr Gunbie’s own prior convictions coming into evidence when it was Mr Gunbie’s turn, but that was a considered a price worth paying: Mr Gunbie’s list was shorter than Mr Callahan’s.
[19] Mr Anderson also cross-examined Mr Callahan extensively about the incident of 3 February. The following tale emerged from that part of the cross-examination. On that occasion, Mr Callahan, armed with a .303 calibre rifle, had gone to the North Harbour Country Club. About 40 people were at the club. While in the carpark, he discharged two shots. He went up to the door to the restaurant area, and discharged a third shot. He demanded to know whether Mr Gunbie was present. He was told he was not, something Mr Callahan did not believe. He warned the restaurant patrons not to cover for Mr Gunbie as he was wanted by the police. He then left.
[20] On 11 February, the police came to Mr Callahan’s property and arrested him. They charged him with discharging a firearm in a public place and with unlawful possession of a firearm in a public place. All the details of this incident and its aftermath were explored in detail in Mr Anderson’s lengthy cross-examination of Mr Callahan.
[21] Mr Anderson then turned to the events of 12 February. The defence case was that Mr Callahan came looking for Mr Gunbie on the morning of 12 February. He carried a rifle. He saw Mr Gunbie just outside the muffler shop in Silverdale. Mr Callahan pointed a rifle out of his car window in Mr Gunbie’s direction. Mr Gunbie asserted he had fired in the direction of Mr Callahan’s vehicle by way of self defence. He happened to have a pistol with him because of the tension there had been between him and Mr Callahan for some time. It was Mr Gunbie’s case that the bullet from his pistol had not hit Mr Callahan’s car. His explanation for the broken window was that, as Mr Callahan ducked down, the butt of his rifle also dropped and acted as a lever, causing the passenger window to drop out of the car and smash. Mr Anderson quite properly put Mr Gunbie’s version of events to Mr Callahan, who emphatically denied it.
[22] It would be fair to say that Mr Callahan reacted very aggressively to Mr Anderson. His obvious antagonism towards Mr Gunbie became focused on Mr Anderson, whom he saw as Mr Gunbie’s alter ego. It is clear Mr Callahan had no concept of the role of defence counsel. When Mr Anderson would put something in accordance with Mr Gunbie’s instructions, Mr Callahan would frequently retort to the effect: "How would you know? You weren’t there." And it is also fair to say that Mr Callahan was clearly needled by the aggressive (though entirely proper) cross-examination. He would have felt that it was he on trial – and, of course, to an extent that was exactly the defence strategy.
[23] We turn now to consider the admissibility of the firing shots evidence. We have concluded it was admissible. It became admissible because of the defence strategy. The history of the feuding and the earlier incidents between the two men were relevant to the defence of self defence. Once the defence elected to open up the history of the relations between these two men, they had to take the good with the bad. They were not entitled to limit the evidence only to aspects which reflected badly on Mr Callahan. If Mr Callahan had an explanation for his apparently aggressive and intimidatory behaviour, he was entitled to give it.
[24] We accept that some of the references to the firing shots incident or incidents were non-responsive to the questions asked, but that was not always the case. For instance, Mr Callahan was entitled to explain, in answer to a question which asked him to explain, why it was not a coincidence that he and Mr Gunbie had ended up in Silverdale that day: see passage A. Further, when he was asked why he had a gun on him on 3 February, he was entitled to explain his reason, namely, that Mr Gunbie had been going past his girlfriend’s house, firing a gun from his motorbike: see passage B. The questions in passages D and E were part of a wider cross-examination, painting Mr Callahan as an aggressive person, someone quite prepared to take the law into his own hands against others he did not like. Mr Callahan was entitled to give his explanation as to why he was acting like that.
[25] There is no doubt that Mr Callahan’s performance in the witness box was colourful, aggressive, and unorthodox. His answers to questions were at times non-responsive. He did completely misunderstand the job of defence counsel. But none of that detracts from the fact that his evidence as to the earlier incident was relevant to matters in issue and accordingly admissible.

Did Mr Gunbie instruct Mr Anderson to apply for a mistrial?

[26] For the purposes of the appeal, Mr Gunbie swore an affidavit, to which Mr Anderson responded. Neither was called for cross-examination. After the firing shots evidence came out, Mr Gunbie says he discussed that evidence with Mr Anderson. He says he told Mr Anderson that he did not accept what Mr Callahan had said about his having "shot at the property belonging to [Mr Callahan’s] de facto wife and child". According to Mr Gunbie, Mr Anderson said he had two options. The first involved applying for a mistrial and thereby aborting the trial. The second involved continuing with the trial with the judge directing the jury to disregard Mr Callahan’s evidence on that point. Mr Gunbie then says:

I told my lawyer that I would like to have the trial aborted. My lawyer then said something along the lines of "We’ll see how things unfold". He left a short time after this.

[27] Mr Anderson’s account is somewhat different. He accepts that he did discuss the firing shots evidence with Mr Gunbie. He accepts that options were discussed. He denies he said words to the effect, "We’ll see how things unfold". He is clear that the decision was taken to proceed with the trial. He says, had Mr Gunbie instructed him to apply for a mistrial, he would have followed that instruction "as it is a very straightforward instruction to follow".
[28] He also says that he discussed with Mr Gunbie how the trial seemed to be going at that stage. According to him, both of them were very pleased with the way the trial was going at that stage. They both thought, he says, that Mr Callahan had been "presented as extremely aggressive and irrational before the jury and hopefully not deserving of belief".
[29] Where accounts are conflicting, it is usually difficult for a court to determine which is accurate without the benefit of cross-examination. In this case, however, we do not need to make a definitive finding of exactly what was said between Mr Gunbie and Mr Anderson. This is for two reasons.
[30] First, even if we accept Mr Gunbie’s version of the conversation, we do not consider what he said amounted to an instruction to apply for a mistrial. He expressed a wish to have the trial aborted, but his lawyer suggested, even on Mr Gunbie’s account, that the matter should be left to see how things unfold. There is nothing in his affidavit to suggest he disagreed with that advice or countermanded it. Further, he has not denied Mr Anderson’s account that, at the time of this decision, both were very pleased with the way in which the trial was progressing. We may add in that regard that we can understand their optimism at that stage. From our reading of the transcript, Mr Anderson’s cross-examination had been most effective. In summary, therefore, we do not find that an instruction was given to apply for a mistrial.
[31] Our second reason for not having to make a definitive finding as to whose account is correct is that, even if, contrary to our view, Mr Gunbie had instructed Mr Anderson to apply for a mistrial, Mr Anderson’s failure to apply did not lead to a miscarriage of justice. That is because, for the reasons given in the prior section of this opinion, the firing shots evidence was admissible. Accordingly, had the application been made, the trial judge would, in our view, have been obliged to dismiss it on the grounds that there was no cause for concern.
[32] This ground of appeal accordingly fails.

Did a miscarriage of justice result from the way in which the firing shots evidence was eventually dealt with?

[33] On the morning of day two of the trial, counsel discussed with the trial judge, Frater J, the firing shots evidence. This was a general discussion: neither counsel had made any formal application. Indeed, it seems possible that the judge herself raised the issue. According to a minute she later issued, counsel agreed "it was preferable that I not draw attention to it". Their view was, according to her minute, "that it was better to wait and see how the case developed". If necessary, she said, she could warn the jury to disregard "irrelevant matters such as the shooting allegations" in the course of her summing up.
[34] The point to note, therefore, is that counsel were at that stage agreed not only that the trial should proceed but also that the judge should say nothing at that stage about the firing shots evidence. Mr Gunbie was no doubt present during that discussion between judge and counsel. There is nothing to suggest he later complained to his counsel about the outcome of that discussion.
[35] The trial then continued. Nothing further was said by anyone about the firing shots evidence. Mr Gunbie neither gave evidence on the topic nor was cross-examined on the topic. Nothing was said in the course of counsel’s final addresses.
[36] Frater J made one reference to it in her summing up. She said in a section of her summing up where she was encouraging the jury to focus on the essential issues:

So you need to focus on the evidence that’s relevant to those issues and when you do that you may find that some of the disputed points are not really relevant to those issues. So, for example, and I give this merely as an example, whether or not Mr Gunbie, in fact, drove past Mr Callahan’s partner’s home and fired shots at it. When you look at the evidence, and it’s a matter for you, you may think that that is really just an incidental matter and it doesn’t have any bearing on the critical points of what happened on this particular day in February outside the exhaust shop [in Silverdale], not what happened on other occasions, but what happened on this day.

[37] Mr Couchman’s complaint was that, in so directing, she indicated to the jury, at least "by implication", that "the evidence of the previous shooting [was] relevant and therefore admissible". Mr Couchman submitted that was contrary to the "ruling" the judge had given on day two of the hearing. He further submitted it was an incorrect ruling because the firing shots evidence was inadmissible. Therefore, it was not "a matter for [the jury]". On the contrary, the jury should have been told it was inadmissible and should be completely ignored.
[38] We do not accept Mr Couchman's submission. First, for the reasons given above, we find the firing shots evidence was admissible.
[39] Secondly, it is not correct that the judge made "a ruling" on day two of the trial. No ruling was sought; none was given. It is clear the judge had some concerns about the evidence, but everyone was content to leave the matter "to wait and see how the case developed". According to the judge’s minute, she did indicate that, "if necessary", she might "warn the jury to disregard irrelevant matters such as the shooting allegations", but that was in no way a commitment.
[40] Thirdly, we consider what she said in summing up put the matter fairly. She told the jury to concentrate on the essential issues, which largely focused on what happened on the morning of 12 February. She pointed out, by way of example, that the firing shots evidence was "not really relevant to those issues". She described it as "an incidental matter [not having] any bearing on the critical points of what happened" on 12 February. In our view, that puts the evidence in its appropriate context. It was a part of the narrative leading up to 12 February. While that overall narrative was important to the issue of self defence, it was not of fundamental significance. Much more important were the detailed accounts from Messrs Callahan and Gunbie and the other eye witnesses as to exactly what had happened outside the muffler shop on the morning of 12 February. We have no doubt, it was on that evidence, of which there was a significant amount, that the jury should have concentrated and did concentrate.
[41] Mr Gunbie complains now that, had he known the judge was going to say this in her summing up, he would have given evidence disputing the firing shots evidence. We doubt that. First, Mr Anderson says that Mr Gunbie could have given evidence on the topic, had he wished to do so. Secondly, had he given evidence on the matter, then inevitably there would have been cross-examination about it. It was clearly possible these drive past incidents had occurred: it was, after all, common ground that Mr Gunbie rode a motorcycle and illegally owned two weapons. That would have drawn much more attention to the issue and might, had he persisted with his denials, have led to the calling of rebuttal evidence from Mr Callahan’s girlfriend. Had the issue blown up in that way, the judge certainly could not have directed the jury effectively to ignore that dispute. We have no doubt that is why Mr Anderson, for good tactical reasons, wanted nothing more to be said about the firing shots evidence.
[42] Our clear view, from having regard the transcript in its entirety, is that this evidence ended up having minor impact in the context of the overall evidence given at trial. We, as lawyers and trial judges, have all had experience, on many occasions, where concerns about a particular piece of evidence given at an early stage of a trial have completely evaporated by the trial’s conclusion, having been swamped by the mass of evidence which later comes in. This evidence was in that category.
[43] Accordingly, we are clear that no miscarriage of justice resulted from the way in which the firing shots evidence was eventually dealt with. It was admissible. It ended up having only minor relevance. No other witnesses referred to it; counsel did not refer to it. The judge made brief reference to it, in terms suggesting it was of minor significance (which it was) and that the jury should concentrate on what actually happened on 12 February.

Result

[44] We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington

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[1]	On 12 February 2005 at Silverdale, a town north of Auckland, Steven Gunbie, the appellant, fired his pistol in the direction of a car driven by Brian Callahan. The Crown contended that the bullet fired from the pistol penetrated a window on the passenger side of Mr Callahan’s car before exiting through a window on the driver’s side. Both windows shattered. Mr Callahan narrowly missed being hit by the bullet.
[2]	The Crown charged Mr Gunbie with three offences. The first was attempting to murder Mr Callahan. The second charge, as an alternative, was that Mr Gunbie, with reckless disregard for the safety of others, discharged a firearm at Mr Callahan. The third count in the indictment was that Mr Gunbie was unlawfully in possession of a pistol.
[3]	There were two main issues at trial. The first was whether Mr Gunbie had a murderous intent. The jury found him not guilty on count 1, so were obviously satisfied there was a reasonable possibility he did not have such intent.
[4]	The second major issue was whether Mr Gunbie’s act of firing the pistol was done in self defence. His account was that he fired the pistol in self defence, having seen Mr Callahan point a rifle out of his car window in his direction. The Crown evidently managed to exclude the reasonable possibility of self defence, as the jury found Mr Gunbie guilty on count 2.
[5]	There was no dispute about count 3, notwithstanding Mr Gunbie’s plea of not guilty to it. The defence at trial accepted Mr Gunbie had been in unlawful possession of the pistol.
[6]	Mr Gunbie now appeals against his conviction on count 2. The appeal was filed a day late. The Crown does not oppose an extension of time for appealing in terms of s 388(2) of the Crimes Act 1961. We grant an extension of time.

[7]	Mr Couchman, for Mr Gunbie, has raised three issues on this appeal.
[8]	First, was some of the evidence in the trial inadmissible? The evidence in question was not given in examination-in-chief; it came in as part of answers Mr Callahan gave when being cross-examined. The evidence may broadly be described as allegations that on previous occasions Mr Gunbie had driven past Mr Callahan’s home and Mr Callahan’s girlfriend’s home, firing shots in the air. Other assertions relating to Mr Gunbie were also made, but, for present purposes, we shall refer to all of the disputed evidence as "the firing shots evidence".
[9]	The second issue relates to certain instructions Mr Gunbie says he gave his then counsel, Mr Anderson, after the firing shots evidence came in. Mr Couchman asserts that Mr Gunbie instructed Mr Anderson to apply for a mistrial. Mr Anderson disputes that.
[10]	The third issue is whether a miscarriage of justice resulted from the way in which the firing shots evidence was eventually dealt with.
[11]	We shall deal with the issues in turn.

[12]	We shall first set out the evidence said to have been inadmissible. We shall then place that evidence in its trial context. Finally, we shall evaluate whether the firing shots evidence was inadmissible.
[13]	Five passages of evidence comprise what we have called the firing shots evidence. They were:

[14]	Mr Couchman’s concern was with respect to Mr Callahan’s assertion, to be found in all five passages, that Mr Gunbie had on an earlier occasion or earlier occasions driven past Mr Callahan’s place and Mr Callahan’s girlfriend’s place, firing a gun. In addition, there were other allegations in passage D concerning "people" who steal dogs and cars and ram cars. It was unclear in context whether Mr Callahan was asserting Mr Gunbie had done those things or whether he was merely explaining the sorts of people he did not like. This particular point was not explored at all in the evidence - no one referred to it again. The real concern is the constant repetition of the assertion of Mr Gunbie having driven past, firing shots in the vicinity of or in the direction of, the two places of residence.
[15]	Mr Couchman’s complaint was that the firing shots evidence was inadmissible as it was prejudicial information about the accused which had no proper relevance to matters in issue in the trial.
[16]	In order to assess the admissibility of this evidence, we must place it in context. The first point we make in this regard is that the Crown did not lead the firing shots evidence; it all came in during Mr Anderson’s cross-examination. That, of course, is not decisive, but it does have some relevance, as we shall show. Mr Callahan’s evidence-in-chief had almost exclusively been limited to the events of 12 February.
[17]	The defence strategy, as is obvious from the transcript and as is confirmed by Mr Anderson in his affidavit, was to blacken Mr Callahan as much as possible. This was necessary from the defence perspective for two reasons. First, the defence had to explain why Mr Gunbie had a pistol on him on 12 February. Secondly, there was no dispute that Mr Gunbie had fired that pistol, if not in Mr Callahan’s direction, at least near to him. If self defence were to be tenable, the background to the incident had to be explored and Mr Callahan had to be portrayed as the aggressor. As Mr Anderson put it, the aim was to show Mr Callahan "as extremely aggressive and irrational", something he believed he had shown through his cross-examination of him.
[18]	To this end, Mr Anderson, in his lengthy and very effective cross-examination, dealt with the history of the relationship between Messrs Callahan and Gunbie. It became very clear that there was a long-standing feud between the two men, the origins of which remain unclear. Mr Anderson cross-examined Mr Callahan at some length about his prior convictions. He realised that this would result in Mr Gunbie’s own prior convictions coming into evidence when it was Mr Gunbie’s turn, but that was a considered a price worth paying: Mr Gunbie’s list was shorter than Mr Callahan’s.
[19]	Mr Anderson also cross-examined Mr Callahan extensively about the incident of 3 February. The following tale emerged from that part of the cross-examination. On that occasion, Mr Callahan, armed with a .303 calibre rifle, had gone to the North Harbour Country Club. About 40 people were at the club. While in the carpark, he discharged two shots. He went up to the door to the restaurant area, and discharged a third shot. He demanded to know whether Mr Gunbie was present. He was told he was not, something Mr Callahan did not believe. He warned the restaurant patrons not to cover for Mr Gunbie as he was wanted by the police. He then left.
[20]	On 11 February, the police came to Mr Callahan’s property and arrested him. They charged him with discharging a firearm in a public place and with unlawful possession of a firearm in a public place. All the details of this incident and its aftermath were explored in detail in Mr Anderson’s lengthy cross-examination of Mr Callahan.
[21]	Mr Anderson then turned to the events of 12 February. The defence case was that Mr Callahan came looking for Mr Gunbie on the morning of 12 February. He carried a rifle. He saw Mr Gunbie just outside the muffler shop in Silverdale. Mr Callahan pointed a rifle out of his car window in Mr Gunbie’s direction. Mr Gunbie asserted he had fired in the direction of Mr Callahan’s vehicle by way of self defence. He happened to have a pistol with him because of the tension there had been between him and Mr Callahan for some time. It was Mr Gunbie’s case that the bullet from his pistol had not hit Mr Callahan’s car. His explanation for the broken window was that, as Mr Callahan ducked down, the butt of his rifle also dropped and acted as a lever, causing the passenger window to drop out of the car and smash. Mr Anderson quite properly put Mr Gunbie’s version of events to Mr Callahan, who emphatically denied it.
[22]	It would be fair to say that Mr Callahan reacted very aggressively to Mr Anderson. His obvious antagonism towards Mr Gunbie became focused on Mr Anderson, whom he saw as Mr Gunbie’s alter ego. It is clear Mr Callahan had no concept of the role of defence counsel. When Mr Anderson would put something in accordance with Mr Gunbie’s instructions, Mr Callahan would frequently retort to the effect: "How would you know? You weren’t there." And it is also fair to say that Mr Callahan was clearly needled by the aggressive (though entirely proper) cross-examination. He would have felt that it was he on trial – and, of course, to an extent that was exactly the defence strategy.
[23]	We turn now to consider the admissibility of the firing shots evidence. We have concluded it was admissible. It became admissible because of the defence strategy. The history of the feuding and the earlier incidents between the two men were relevant to the defence of self defence. Once the defence elected to open up the history of the relations between these two men, they had to take the good with the bad. They were not entitled to limit the evidence only to aspects which reflected badly on Mr Callahan. If Mr Callahan had an explanation for his apparently aggressive and intimidatory behaviour, he was entitled to give it.
[24]	We accept that some of the references to the firing shots incident or incidents were non-responsive to the questions asked, but that was not always the case. For instance, Mr Callahan was entitled to explain, in answer to a question which asked him to explain, why it was not a coincidence that he and Mr Gunbie had ended up in Silverdale that day: see passage A. Further, when he was asked why he had a gun on him on 3 February, he was entitled to explain his reason, namely, that Mr Gunbie had been going past his girlfriend’s house, firing a gun from his motorbike: see passage B. The questions in passages D and E were part of a wider cross-examination, painting Mr Callahan as an aggressive person, someone quite prepared to take the law into his own hands against others he did not like. Mr Callahan was entitled to give his explanation as to why he was acting like that.
[25]	There is no doubt that Mr Callahan’s performance in the witness box was colourful, aggressive, and unorthodox. His answers to questions were at times non-responsive. He did completely misunderstand the job of defence counsel. But none of that detracts from the fact that his evidence as to the earlier incident was relevant to matters in issue and accordingly admissible.

[27]	Mr Anderson’s account is somewhat different. He accepts that he did discuss the firing shots evidence with Mr Gunbie. He accepts that options were discussed. He denies he said words to the effect, "We’ll see how things unfold". He is clear that the decision was taken to proceed with the trial. He says, had Mr Gunbie instructed him to apply for a mistrial, he would have followed that instruction "as it is a very straightforward instruction to follow".
[28]	He also says that he discussed with Mr Gunbie how the trial seemed to be going at that stage. According to him, both of them were very pleased with the way the trial was going at that stage. They both thought, he says, that Mr Callahan had been "presented as extremely aggressive and irrational before the jury and hopefully not deserving of belief".
[29]	Where accounts are conflicting, it is usually difficult for a court to determine which is accurate without the benefit of cross-examination. In this case, however, we do not need to make a definitive finding of exactly what was said between Mr Gunbie and Mr Anderson. This is for two reasons.
[30]	First, even if we accept Mr Gunbie’s version of the conversation, we do not consider what he said amounted to an instruction to apply for a mistrial. He expressed a wish to have the trial aborted, but his lawyer suggested, even on Mr Gunbie’s account, that the matter should be left to see how things unfold. There is nothing in his affidavit to suggest he disagreed with that advice or countermanded it. Further, he has not denied Mr Anderson’s account that, at the time of this decision, both were very pleased with the way in which the trial was progressing. We may add in that regard that we can understand their optimism at that stage. From our reading of the transcript, Mr Anderson’s cross-examination had been most effective. In summary, therefore, we do not find that an instruction was given to apply for a mistrial.
[31]	Our second reason for not having to make a definitive finding as to whose account is correct is that, even if, contrary to our view, Mr Gunbie had instructed Mr Anderson to apply for a mistrial, Mr Anderson’s failure to apply did not lead to a miscarriage of justice. That is because, for the reasons given in the prior section of this opinion, the firing shots evidence was admissible. Accordingly, had the application been made, the trial judge would, in our view, have been obliged to dismiss it on the grounds that there was no cause for concern.
[32]	This ground of appeal accordingly fails.

[33]	On the morning of day two of the trial, counsel discussed with the trial judge, Frater J, the firing shots evidence. This was a general discussion: neither counsel had made any formal application. Indeed, it seems possible that the judge herself raised the issue. According to a minute she later issued, counsel agreed "it was preferable that I not draw attention to it". Their view was, according to her minute, "that it was better to wait and see how the case developed". If necessary, she said, she could warn the jury to disregard "irrelevant matters such as the shooting allegations" in the course of her summing up.
[34]	The point to note, therefore, is that counsel were at that stage agreed not only that the trial should proceed but also that the judge should say nothing at that stage about the firing shots evidence. Mr Gunbie was no doubt present during that discussion between judge and counsel. There is nothing to suggest he later complained to his counsel about the outcome of that discussion.
[35]	The trial then continued. Nothing further was said by anyone about the firing shots evidence. Mr Gunbie neither gave evidence on the topic nor was cross-examined on the topic. Nothing was said in the course of counsel’s final addresses.
[36]	Frater J made one reference to it in her summing up. She said in a section of her summing up where she was encouraging the jury to focus on the essential issues:

[37]	Mr Couchman’s complaint was that, in so directing, she indicated to the jury, at least "by implication", that "the evidence of the previous shooting [was] relevant and therefore admissible". Mr Couchman submitted that was contrary to the "ruling" the judge had given on day two of the hearing. He further submitted it was an incorrect ruling because the firing shots evidence was inadmissible. Therefore, it was not "a matter for [the jury]". On the contrary, the jury should have been told it was inadmissible and should be completely ignored.
[38]	We do not accept Mr Couchman's submission. First, for the reasons given above, we find the firing shots evidence was admissible.
[39]	Secondly, it is not correct that the judge made "a ruling" on day two of the trial. No ruling was sought; none was given. It is clear the judge had some concerns about the evidence, but everyone was content to leave the matter "to wait and see how the case developed". According to the judge’s minute, she did indicate that, "if necessary", she might "warn the jury to disregard irrelevant matters such as the shooting allegations", but that was in no way a commitment.
[40]	Thirdly, we consider what she said in summing up put the matter fairly. She told the jury to concentrate on the essential issues, which largely focused on what happened on the morning of 12 February. She pointed out, by way of example, that the firing shots evidence was "not really relevant to those issues". She described it as "an incidental matter [not having] any bearing on the critical points of what happened" on 12 February. In our view, that puts the evidence in its appropriate context. It was a part of the narrative leading up to 12 February. While that overall narrative was important to the issue of self defence, it was not of fundamental significance. Much more important were the detailed accounts from Messrs Callahan and Gunbie and the other eye witnesses as to exactly what had happened outside the muffler shop on the morning of 12 February. We have no doubt, it was on that evidence, of which there was a significant amount, that the jury should have concentrated and did concentrate.
[41]	Mr Gunbie complains now that, had he known the judge was going to say this in her summing up, he would have given evidence disputing the firing shots evidence. We doubt that. First, Mr Anderson says that Mr Gunbie could have given evidence on the topic, had he wished to do so. Secondly, had he given evidence on the matter, then inevitably there would have been cross-examination about it. It was clearly possible these drive past incidents had occurred: it was, after all, common ground that Mr Gunbie rode a motorcycle and illegally owned two weapons. That would have drawn much more attention to the issue and might, had he persisted with his denials, have led to the calling of rebuttal evidence from Mr Callahan’s girlfriend. Had the issue blown up in that way, the judge certainly could not have directed the jury effectively to ignore that dispute. We have no doubt that is why Mr Anderson, for good tactical reasons, wanted nothing more to be said about the firing shots evidence.
[42]	Our clear view, from having regard the transcript in its entirety, is that this evidence ended up having minor impact in the context of the overall evidence given at trial. We, as lawyers and trial judges, have all had experience, on many occasions, where concerns about a particular piece of evidence given at an early stage of a trial have completely evaporated by the trial’s conclusion, having been swamped by the mass of evidence which later comes in. This evidence was in that category.
[43]	Accordingly, we are clear that no miscarriage of justice resulted from the way in which the firing shots evidence was eventually dealt with. It was admissible. It ended up having only minor relevance. No other witnesses referred to it; counsel did not refer to it. The judge made brief reference to it, in terms suggesting it was of minor significance (which it was) and that the jury should concentrate on what actually happened on 12 February.