R v McFarland and Brooks [2007] NZCA 449 (18 October 2007)

Last Updated: 5 November 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA385/06

[2007] NZCA 449

THE QUEEN

v

TERRENCE AUSTIN MCFARLANDCA455/06THE QUEEN

v

MICHAEL ROBERT BROOKS

Hearing: 16 July 2007

Court: Arnold, Potter and Venning JJ

Counsel: W C Pyke for Appellant McFarland
C J Tennet for Appellant Brooks
M D Downs for Crown

Judgment: 18 October 2007 at 4 pm

JUDGMENT OF THE COURT

1. Mr Brooks’ application for an extension of time to file his appeal is granted.
2. The appeals are dismissed.
   

REASONS OF THE COURT

(Given by Arnold J)

Table of Contents

Para No.

Introduction [1]
Background [4]
Mr McFarland’s appeal: CA385/06
Conviction [15]
(a) Representation issues [16]

(b) Fair trial issues [31]

• (i) What role did amicus perform? [48]

(ii) Inadequate preparation and effect on appellant [61]
(iii) Errors by amicus [64]
(iv) Conclusion [74]
(c) Errors of law [75]

• (i) Television coverage [77]
• (ii) Standard of proof [80]
• (iii) Joint enterprise [92]

(iv) Gang associations and comments of counsel for Crown [97]

(v) Conclusion [104]
Sentence [105]
Mr Brooks’ appeal: CA455/06 [107]
Conviction [108]
Sentence [119]
Result [120]

Introduction

[1] The appellants were jointly charged with unlawfully detaining the complainant without his consent with intent to cause him to be confined contrary to s 209(1)(a) of the Crimes Act 1961 (kidnapping) and with maiming him with intent to cause grievous bodily harm contrary to s 188(1). They were tried before Judge Sharp and a jury. At the conclusion of the complainant’s evidence in chief, counsel for Mr Brooks applied for a discharge under s 347 of the Crimes Act in respect of the kidnapping charge. The Judge allowed the application and discharged both appellants on that charge.
[2] The trial continued on the maiming charge. At the close of the Crown case Mr Brooks entered a plea of guilty. Mr McFarland maintained his defence but was convicted by the jury. On sentencing, the Judge adopted a starting point of eight years imprisonment for both appellants. As there were no mitigating factors in Mr McFarland’s case, the Judge imposed an end sentence of eight years, with a minimum period of imprisonment of four years. The Judge gave Mr Brooks a discount of 20 per cent to reflect his guilty plea, his remorse and his “complete acceptance of responsibility”, which led to an end sentence of six years eight months imprisonment. The Judge imposed a minimum term of three years four months imprisonment on Mr Brooks.
[3] Both appellants appeal against conviction and sentence. Mr Brooks seeks leave to extend the time for filing his appeal. The Crown does not oppose that application, and we grant it.

Background

[4] The complainant socialised with members of the Headhunters gang, although he was not himself a member or a prospective member (prospect) of the gang. His flatmate, Mr Johnson, was a prospect. The appellant, Mr McFarland, is a senior member of the gang and the other appellant, Mr Brooks, is (or was) a prospect.
[5] The complainant gave evidence as follows. He said that he witnessed a person named Jason Barnes being beaten by some Headhunters about a month before the events which gave rise to these charges. He said that shortly after the assault, Mr McFarland told him that Mr Barnes had died as a result of the beating and asked for the complainant’s assistance in disposing of the body. The complainant refused to assist. He was told not to tell anyone, and was warned that there would be consequences if he did.
[6] Shortly after, when the complainant was remanded in custody for breaching his bail conditions while awaiting sentence on a charge of aggravated robbery, he told a fellow prisoner (who was apparently a member of the Headhunters) that Mr Barnes had been killed and that Mr McFarland had asked him to help dispose of the body. News of this disclosure found its way back to Mr McFarland.
[7] When the complainant was released from custody soon after, Mr Brooks went to his flat and told him that Mr McFarland wanted to see him. The complainant, Mr Johnson, and Mr Brooks went to Mr McFarland’s home. The complainant was taken to a room under the house. Mr McFarland was there.
[8] The complainant said that Mr McFarland asked him if he had said anything about what had happened to Mr Barnes. When the complainant acknowledged that he had said something about it to a fellow prisoner, Mr McFarland said he was going to cut the complainant’s finger off. When the complainant replied that he did not want to lose his finger, Mr McFarland told him that it was either his tongue or his finger.
[9] The complainant said that he asked Mr McFarland if there was anything else that he could do, such as paying some money, but Mr McFarland said that it was either his finger or his tongue. He said that Mr McFarland told him that he had to chop his own finger off. The complainant said that he could not do that. He was told to place his hand on a table and hold a knife over his finger. He said he put the little finger of his right hand on the table and held a knife which he had been given over it. Mr Brooks then hit the top of the knife with a sledgehammer, which severed his finger.
[10] The complainant said that he asked if he could have his finger back so that it could be re-attached. He said that the appellants told him that he could not have it because they were going to add it to their collection of fingers and ears. The complainant wrapped a tee-shirt round his bleeding hand and went to a hospital where he received medical treatment. He was told not to tell anybody else about what had happened or he would be killed.
[11] The complainant later went to the Police. The Police executed a search warrant at Mr McFarland’s home. In the room described by the complainant the Police found a number of knives and a sledgehammer. There were also various blood spots and smears on the room’s ceiling, on a wall and on various articles within the room, including the sledgehammer, one of the knives and a knife holder.
[12] At trial Mr McFarland gave evidence on his own behalf. He said that he was outside the room when the critical sequence of events took place and took no part in it. He said that Mr Brooks had come out of the room to tell him that the complainant had cut his own finger off.
[13] Mr Brooks, having pleaded guilty at the conclusion of the Crown’s case, gave evidence for Mr McFarland. He supported Mr McFarland’s version of events, except that he said that he (Mr Brooks) had cut the complainant’s finger off by accident.
[14] As the grounds advanced by each of the appellants differ, we deal with each appeal in turn.

Mr McFarland’s appeal: CA385/06

Conviction

[15] Mr Pyke advanced number of grounds of appeal in support of his submission that there was a miscarriage of justice. He grouped them, broadly, under three headings:

(a) Representation issues;

(b) Fair trial issues;

(c) Errors of law.

We will address the arguments under those heads.

(a) Representation issues

[16] The factual background to this aspect of the appeal is as follows. Mr Gibson represented Mr McFarland at the depositions hearing. Mr McFarland said that he had arranged that Mr Ryan would represent him at trial. However, at a callover on 15 June 2006 Mr Ryan was granted leave to withdraw. The reason for that was apparently that it had become clear that he would not be paid.
[17] The callover Judge noted on the file that Mr McFarland had been “urged to apply for legal aid” but that he would “represent self if necessary”. The Judge remanded Mr McFarland until 22 June 2006. At the callover on that date, Mr McFarland appeared without representation. The Judge on that occasion remanded him until 27 June 2006, noting on the file “Julian Hague to be contacted”. On 27 June 2006 Mr McFarland again appeared without representation. On this occasion the file was noted:

Trial firm 3.7.06. Accused McFarland could benefit from appointment of Amicus. Registrar directed to make enquiry of accused and available counsel such as Mr Hague/Ms Pecotic.

[18] The trial was allocated to Judge Sharp. It was scheduled to start on Monday 3 July 2006. In her report to the Court under r 17 of the Court of Appeal (Criminal) Rules 2001 the Judge said that her earliest recollection of contact with the file was Friday 30 June 2006. She was told that Mr Newell (counsel for Mr Brooks) and Crown counsel wished to see her. Accordingly, she saw them in chambers.
[19] Mr Newell said that he was concerned that Mr McFarland intended to represent himself because of the potential impact of that on his representation of Mr Brooks. He asked Judge Sharp to appoint an amicus to avert any such difficulties. He said that Mr Trotter, with whom he shared chambers, was available and already had some knowledge of the case. Counsel for the Crown concurred in this suggestion. The Judge made an order accordingly.
[20] In his affidavit of 26 March 2007, Mr McFarland says that at a pre-trial conference some days before the trial Judge Sharp had asked him if he wanted representation. He deposed that he told the Judge that he did, but felt that if the trial was to proceed as scheduled, a new lawyer would not have time to prepare. He said that Judge Sharp made it clear that the trial would not be adjourned, even if he was not represented, and that he should be ready to proceed regardless.
[21] The trial commenced as scheduled on 3 July 2006. Judge Sharp says in her report that she explained the role of amicus to Mr McFarland at the outset. By contrast, Mr McFarland says in his affidavit that no-one explained the role of amicus to him. Clearly he is wrong about that, as he seemed to accept under cross-examination and re-examination. The transcript of the preliminary discussions before the jury was empanelled reveal that Judge Sharp said the following:

Mr McFarland you do understand that I have appointed Mr Trotter, on my left, as what we call, a amicus curiae, that is counsel to assist the Court. His role, since you firmly indicated that you do not want counsel, his role is to assist me, so that the jury trial is not prejudiced in any way, the integrity of it is not prejudiced by your conduct.

And later:

Mr McFarland you understand, don’t you, that Mr Trotter’s position is to help me but he will be helping the Court conduct a fair jury trial if you ask him any questions that you have about procedure. Or if you have any queries about anything, if you refer them to him he knows from me that he is able to answer them and give you assistance. If, however, you do not ask for assistance then, apart from procedural matters that you have already agreed between you, he will allow you to go on as you wish.

Do remember though, won’t you, that a jury trial is pretty specialised and Mr Trotter is very experienced, has a great amount of knowledge and skill which is at your disposal.

[22] Further, Mr Trotter deposed in his affidavit, and reiterated under cross-examination, that he explained his role as amicus to Mr McFarland shortly after he met him on 3 July 2006. He told Mr McFarland that he that he had been appointed to assist the Court to ensure that the trial was conducted fairly. He said that there was further discussion about the role that he could play, and that initially, Mr McFarland was suspicious of him because, he thought, Mr McFarland considered that the appointment was being “foisted” on him. Mr Trotter said that he attempted to allay Mr McFarland’s concerns, and said that he would be able to answer any questions Mr McFarland might have or to assist him in the conduct of his case. Mr Trotter said that, prior to the trial getting underway, he was able to spend some time with Mr McFarland and was told of the basis of his defence and the witnesses he would be calling. They discussed issues relating to cross-examination.
[23] Against this background, Mr Pyke argued that Mr McFarland’s application for an adjournment indicated that he wished to have a lawyer appointed to represent him. He relied on s 30 of the Sentencing Act 2002 (which provides that a sentence of imprisonment may not be imposed without the opportunity for legal representation) and R v Condon [2007] 1 NZLR 300 (SC). Mr Pyke said that the refusal to grant the adjournment meant that Mr McFarland was deprived of an adequate opportunity to obtain a lawyer. Accordingly, he said, consistently with Condon at [81] the onus was on the Crown to satisfy the Court that, in all the circumstances, the absence of representation did not result in an unfair trial.
[24] As we see it, there are two difficulties with that line of argument. First, it is by no means clear that Mr McFarland did in fact seek an adjournment. There is no record of any such application on the morning of the trial. As we have said, Mr McFarland referred in an affidavit filed in support of his appeal to a pre-trial conference before Judge Sharp several days before the trial. It seems, however, that Mr McFarland may be referring to the callover on 27 June, where the callover Judge does seem to have made it clear that the trial would proceed on 3 July. But it is also clear from the callover Judge’s note on the Court file, which refers to the appointment of an amicus (see [17] above), that Mr McFarland had said that he would represent himself.
[25] More importantly, it is clear that Mr McFarland made no effort after Mr Ryan was excused on 15 June 2006 to obtain a lawyer through legal aid or otherwise. Under cross-examination by Mr Downs for the Crown, Mr McFarland accepted that he did not attempt to obtain another lawyer in the period between 15 June 2006 and the date of trial. He explained this by saying that he considered that there was insufficient time for a new lawyer to prepare.
[26] That explanation does not withstand scrutiny. This was a relatively straightforward case, involving few potential witnesses. Mr McFarland’s defence was that he had nothing to do with the complainant’s finger being cut off, as he was outside the room at the time with Mr Johnson, discussing a problem that he was having with his boat. Competent counsel could readily have prepared in the time available, and if any particular problem had emerged during preparation, counsel could have sought an adjournment.
[27] The record reveals that the issue of legal assistance for Mr McFarland was raised at three callovers prior to trial – on 15, 22 and 27 June. Despite that Mr McFarland did not attempt to obtain assistance. In her remarks to Mr McFarland about the appointment of amicus prior to the start of the trial (see [21] above), Judge Sharp noted that he had “firmly indicated that [he did] not want counsel”. Mr McFarland did not take issue with this statement at the time, or later in the trial when the Judge made similar comments.
[28] We consider that the true position is that Mr McFarland made a deliberate decision that he wanted to represent himself, knowing that he had a right to be represented by counsel and that he could apply for legal aid. In this context, we note that Mr McFarland has considerable experience of the criminal justice system.
[29] As a result, there has been no breach of the appellant’s rights under s 24 of the New Zealand Bill of Rights Act 1990 (NZBORA) to instruct and consult a lawyer or to receive legal aid (assuming that he would qualify) (see Condon at [80]).
[30] That does not resolve the matter, however. The Supreme Court in Condon said (at [80]) that even where a person’s right to legal representation has not been breached, if he or she can show that the trial was unfair because the defence could not be conducted adequately without the assistance of counsel, the resulting conviction will be set aside as a miscarriage of justice. This is because the right to a fair trial guaranteed by s 25(a) of NZBORA is absolute. Mr Pyke argued that the trial in this case was unfair. Accordingly we turn to consider that aspect.

(b) Fair trial issues

[31] Under this head we deal with Mr Pyke’s arguments about the role and performance of Mr Trotter as amicus. In essence, Mr Pyke argued that Mr Trotter acted as Mr McFarland’s counsel and did not do so effectively. This was because he was briefed at a very late stage and was not able to prepare sufficiently, which in turn affected the way in which Mr McFarland gave his evidence. Mr Pyke argued that Mr Trotter made a number of mistakes in the course of the trial, which he would not have made had he had the opportunity to prepare more fully.
[32] To do justice to Mr Pyke’s arguments, we need to describe how the trial developed.
[33] On Monday 3 July, before jury selection, the Judge dealt with an application by TV3 to film for the purpose of television broadcast. Mr McFarland opposed the application largely because he was concerned about the effect of filming on him during the trial, and its impact on his children. The Judge granted TV3’s application.
[34] Although this was an appeal point, counsel did not press the matter, rightly in our view. The Judge dealt with the application in terms of the In-Court Media Coverage Guidelines 2003 and expressly drew attention to the fact that the standard conditions for television coverage in Schedule 2 allowed filming of Mr McFarland only for the first 15 minutes of any sitting day. The prejudice which Mr McFarland alleged is inherent in the type of filming that the Guidelines permit and is the same type of prejudice that is faced by all accused in similar circumstances.
[35] After the Judge had dealt with TV3’s application, jury selection commenced. Mr McFarland agreed that Mr Trotter would assist him in that process. No complaint is made about any aspect of that.
[36] The Crown then opened and, having called a police photographer to produce some photographs, called the complainant. As we have said, after the close of the complainant’s evidence in chief, Mr Newell for Mr Brooks applied for a s 347 discharge in relation to the kidnapping charge. That application was granted in respect of both appellants. Court then adjourned for the day at 3.31pm.
[37] At about 4pm there was a discussion between Mr Newell and Mr Brooks about Mr Brooks pleading guilty to the maiming charge. Mr Newell and Mr Trotter spoke to Mr McFarland about this. Mr Newell also spoke to Mr McFarland privately on the topic. Mr McFarland said that Mr Newell asked him to persuade Mr Brooks to plead guilty and that he subsequently had a discussion with Mr Brooks, during which he passed on Mr Newell’s views to him. The following morning (2 July), Mr Brooks did enter a plea of guilty, having first signed an acknowledgement that he wished to do so.
[38] After that, Mr Trotter cross-examined the complainant on behalf of Mr McFarland for approximately one and a half hours. In the course of that cross-examination there was questioning as to whether the complainant had received leniency in his sentence for aggravated robbery to reflect his co-operation in the present case. The following exchange occurred between Mr Trotter and the complainant:

Now am I right that as a result of talking to the police, making statements, you’ve received some consideration in terms of your sentencing? ..... Some what’s that? No that’s not correct.

Well we heard that yesterday that you’d been sentenced on a matter, what was that? ..... A aggravated robbery sir.

And what was the sentence that you received? ..... Two years.

Because that’s a sentence two years or less you’re entitled to home [detention] aren’t you? .....Yes that’s correct.

Have you got home [detention]? ..... Yes I did.

And the charge was aggravated robbery you told us yesterday? ..... Yes.

I put it to you that your story is nothing more than that, just a story? ..... No that’s not correct, it’s not just a story, sir.

And specifically the allegations that are against Mr McFarland were to curry favour with the police in terms of some consideration on sentencing, what do you say? ..... No sir, not at all.

[39] The Crown then called four police officers, the last of whom was cross-examined by Mr Trotter on behalf of Mr McFarland. Court adjourned at 3.22pm on the second day.
[40] On the third day of the trial (Wednesday 5 July), Mr Trotter opened for Mr McFarland and then called him. After he had completed his evidence in chief there was a lengthy cross-examination by Crown counsel and a short re-examination by Mr Trotter. Mr Trotter then called Mr Brooks, who gave his evidence in chief and was cross-examined. Mr Brooks said that he had cut off the complainant’s finger with the knife, but accidentally. He said they were “mucking around” and that he thought that the complainant would move his finger out of the way as he brought the knife down. He denied the use of the sledgehammer. He also said that Mr McFarland was outside the room at the time and had nothing to do with what occurred. We note in passing that Mr Brooks’ claim that the severing of the finger had occurred accidentally was, of course, inconsistent with his guilty plea on the maiming charge.
[41] After that, Mr Trotter called a Mr Talbot, who gave evidence in relation to the incident in which Mr Barnes was supposed to have been assaulted and killed.
[42] Before Court adjourned for the day there was some discussion between counsel and the Court about whether the complainant would be recalled. This arose because there had been further disclosure by the Crown relating to the complainant’s sentencing on the aggravated robbery charge. The next day (6 July) was a lay day. Judge Sharp issued the following ruling:

[1] Yesterday, before the Court adjourned, there was discussion between counsel and the Court about the issue of cross-examination of the complainant and whether the complainant should be recalled due to some late disclosure.

[2] The history of this matter is that Mr McFarland has been self represented for the last weeks having firmly rejected any idea that he should replace his last defence lawyer despite being eligible for a further legal aid lawyer. I appointed Mr Trotter as Amius Curiae. His role seems to have developed during the course of a trial as more and more responsibility has devolved to him from Mr McFarland’s desire to avail himself of legal assistance.

[3] It appears that none of the disclosure which in normal circumstances would go to defence counsel has come into the hands of Mr McFarland personally. Naturally Mr Trotter, who was only appointed Amicus Curiae on Friday of last week, was not privy to any such disclosure.

[4] Because the issue of whether ... the complainant was offered any inducement before agreeing to give evidence against Mr McFarland arose during trial I called for sentencing notes of [the complainant] in respect to an aggravated robbery, to which he pleaded guilty in 2005, and asked the Crown to search its files to ascertain whether there was any other relevant disclosure.

[5] What has surfaced is:

(i) A job sheet of the former officer in charge of this enquiry, Detective Sergeant Davey, (the date of that job sheet is 30 March 2005),

(ii) Copy of a letter from the same Detective to the District Court proffered in support of a bail application by [the complainant] (dated 13 April 2005) from the same Detective,
(iii) And just this morning, the sentencing notes of Judge Taumaunu in respect of [the complainant] on the aggravated robbery.

[6] From the latter it is clear that a significant discount was given to [the complainant] as a result of matters raised in a confidential memorandum filed with the Court prior to that sentencing on 8 June 2005. I do not yet have the memorandum. The Court and Mr Northwood, for the Crown, surmise that the contents of that memorandum are similar if not identical to the Detective Sergeant’s letter to the Court of 13 April in support of bail.

[7] When Mr Trotter cross-examined [the complainant] he did not have any of these documents and was, as I have said earlier, taking a stab in the dark in the area of inducement. The complainant answered that he had not been offered any inducement to give evidence against Mr McFarland (which may or may not be true). He also said that he received no “consideration” at sentencing for aggravated robbery. That, palpably, was untrue.

[8] Whether Mr McFarland now wishes to recall [the complainant] in order to properly explore these matters with him as a result of this late disclosure, or not, is a matter on which I make no ruling now. Mr Trotter needs to take further instructions from Mr McFarland who, by consent, is absent today.

[9] The Crown will oppose any application for recall. As I have indicated to counsel the matter is a difficult one for the defence because in the documents to which I have referred there is reference to [the complainant] being on the witness protection programme, something which the Court and counsel have strenuously sought to keep from the jury for obvious reasons.

[10] The Crown’s attitude is that if any witnesses are to be examined about these matters then all of the facts and all of the documentary information must come to light not a sanitised version which would not be in the interests of justice. To leave the jury thinking that for the mere fact of giving evidence the complainant received a substantial discount on his own sentencing, without any consideration given to the uncomfortable elements of his present existence occasioned by his being on witness protection, would be unfair and inconsistent with the facts. However, of course, it may well be prejudicial to Mr McFarland if circumstances pertaining to witness protection come to the knowledge of the jury.

[11] My ruling in respect of these matters is as follows:

(i) Because such late disclosure has been made of matters, which if in the knowledge and possession of Mr McFarland and Amicus Curiae at the proper time may well have caused a completely different line of cross examination to ensue, I would likely grant any application for recall of the complainant that was made. I would do so however with a clear warning to Mr McFarland, that he may be treading on quicksand.

(ii) I also rule, however, that regardless of recall or not of [the complainant] any examination of Detective Sergeant Davey (should he be called) will of necessity elicit production of all of the relevant documents they being the letter to the Court of 30 March 2005, the job sheet of 13 April 2005, and the sentencing notes of my colleague Judge Taumaunu on 8 June 2005. All the facts or none of the facts need to come before the jury.

[12] In summary there is a careful decision to be made by Mr McFarland with the considerable assistance of Mr Trotter. I await his decision in that regard.

[43] This was followed on the same day by a further ruling, as follows:

[1] In the interests of an abundance of caution Mr Trotter now advances an application for recall of [the complainant] even though he has not taken instructions from Mr McFarland who is not here, as I explained earlier. He does so because [the complainant] is presently serving a prison sentence although by way of home detention. The trial is having a lay day today but will proceed again tomorrow morning and therefore an order to produce needs to be done.

[2] The Crown, as I have already said, opposes the application but I have indicated that if an application was made I would likely grant it considering that cross-examination would have proceeded perhaps differently or certainly more fully had Mr McFarland been in possession of the disclosure documents which are now before the Court. It is in the interests of justice. It is only fair that the accused have the opportunity to put the matters raised in this late disclosure to the witness should he so desire.

[3] I therefore grant that application and an order to produce is to be done by the Court so that the witness is here tomorrow. Should Mr McFarland choose not to exercise his right to recall that witness, despite the order, then so be it.

[44] The trial resumed on Friday 7 July. Mr Trotter called the final witness for the defence, namely Mr Barnes. At 10.25am Court adjourned until the following Monday, Mr McFarland having made no election as to whether he wished to recall the complainant. On Monday 10 July, Mr McFarland advised the Judge that he did not wish to have the complainant recalled. The following exchange is recorded in the transcript:

THE COURT: Gentlemen, I’m told by the registrar that Mr McFarland has determined not to now have the complainant recalled?

MR TROTTER: Yes, he’s told me – I’ve read the ruling of Your Honour, he’s talked to me and having thought more on the matter doesn’t want to recall [the complainant].

THE COURT: There are two matters that arise. The first is Mr McFarland, during the course of this trial your defence has virtually devolved to Mr Trotter who has taken it over because that seemed to be what you wanted. Now, it’s unusual for the lawyer appointed to assist the Court to do that, but I wanted to make sure since you didn’t have your own lawyer that you were ably represented and that you didn’t do yourself any injury by not having legal representation, however, I need you to assure me that you are happy with that position and that decisions that have been taken have been taken on your behalf and with your consent during this trial. Is that so or not?

MR McFARLAND: Yes, well, he’s helped me understand a few things, so, yeah.

THE COURT: You do realise, don’t you, that because he is here does not mean that you cannot cross examine yourself, it does not mean that you can’t address the jury yourself, does not mean that you can’t take as active a part in your representation as you would have had he not been here. Is that a yes?

MR McFARLAND: I think so.

THE COURT: In terms of your decision that Mr Trotter has just notified me of now, not now to recall the complainant, I just want to be absolutely clear – the complainant is available to be recalled, you, or Mr Trotter on your behalf if you wish him to, is able to cross examine him about the matter of inducement and the matter of discount on sentence because of assisting the police in terms of this prosecution. I hope I’ve made it clear that that’s able to happen, I don’t want you to feel that you’re being told by the Court that it must not happen.

MR McFARLAND: I’ve listened to everything over the last few days about that and I think the more experienced advice advises against it, so, I’ll go, I’m better not calling him.

THE COURT: I also want to make it clear for the record that whilst my personal view is that to cross examine about these matters is difficult, provided it’s done skilfully enough it’s not impossible to do so without eliciting the production of the documents which are problematical. It is possible but it needs very, very skilful cross-examination, so, if Mr Trotter feels that he can do so and if Mr McFarland is happy with that position, then by all means go ahead. I just do not want to see Mr McFarland’s defence jeopardised because inadvertently during cross-examination in this difficult area of inducement et cetera, the documents which none of us want to go before the jury end up being produced. They can, of course, be cross examined on without being produced, but then you’ve got the situation where the Crown might attempt to do so. So, as long as everybody understands that position. Do you want more time to discuss it again with Mr McFarland?

MR TROTTER: If I might just have a moment.

We’ll leave it here.

THE COURT: That means therefore I presume that Mr McFarland will close his case formally in front of the jury when the jury comes back in. Is that right.

MR TROTTER: He will, he’s asked me to do that on his behalf. So again it might be somewhat unusual but he’s asking me to deliver his closing.

THE COURT: Is that so, Mr McFarland?

MR McFARLAND: (No audible answer)

[45] Closing addresses followed. As foreshadowed in the exchange with the Judge, Mr Trotter delivered the address on behalf of Mr McFarland. The Judge then summed up.
[46] Out of this sequence of events Mr Pyke raised the following appeal points:

• (a) It was not clear precisely what role Mr Trotter was intended to, and did, perform;
• (b) The late appointment of Mr Trotter as amicus meant that he was inadequately prepared, which in turn affected the way in which Mr McFarland gave evidence;
• (c) To the extent that he did act as Mr McFarland’s lawyer, Mr Trotter committed a number of errors. These included:
  • (i) Allowing Mr Newell to confer with Mr McFarland in his (Mr Trotter’s) absence;
  • (ii) Calling evidence from Mr Brooks when that evidence was inconsistent with his plea of guilty;
  • (iii) Providing a foundation for the Crown’s submission that Mr Brooks was Mr McFarland’s “fall guy”; and
  • (iv) Advising against recalling the complainant.

[47] We deal with each point in turn.

(i) What role did amicus perform?

[48] Mr Pyke referred us to the decision of this Court in R v Hill [2004] 2 NZLR 145. There, the Court said that it would be rare that an amicus was appointed in a criminal case, given the availability of legal aid (at [56]). In that case the accused had made it clear that he wished to represent himself. The Court said that the appointment of an amicus in those circumstances would not have fitted comfortably with the accused’s chosen course of action (at [59]). The Court said (also at [59]):

If appointed as amicus, [counsel’s] responsibility would have been to assist the Court and not to represent or to speak on behalf of [the accused]. In that role, [counsel’s] duty to the Court may well have conflicted with advice he might have given [the accused] if he were acting on his behalf as counsel in the ordinary way. We very much doubt that was [the accused’s] intention. Rather, he wanted to have legal assistance on his terms when or if he wished to avail himself of it. We are satisfied the Judge was right to exercise his discretion against the appointment of [counsel] as amicus.

[49] Despite these observations, it has become increasingly common, as Mr Pyke said, for trial judges to appoint an amicus where an accused decides to represent him or herself. This seems, in part at least, to be a response to the judgment of the Supreme Court in Condon. In that case the Supreme Court accepted (at [80]) that a self-represented accused may suffer an unfair trial contrary to s 25(a) of NZBORA as a result of lack of legal representation, even though he or she was fully advised of the right to legal representation and of the availability of legal aid before electing self-representation.
[50] The Court described the approach that an appellate court should adopt when assessing fairness in this context as follows:

[82] The Court should examine the manner in which the Judge presided over the trial, especially whether the Judge clearly explained the court procedures to the accused and thereby minimised the disadvantage of being unfamiliar with the trial process and with rules of evidence. It will be relevant also whether the accused had the benefit of guidance from a lawyer or an amicus at any time prior to or during the trial. The Court must have regard to the personal characteristics of the appellant, such as level of intelligence and education, previous experience in a courtroom and ability to express him or herself clearly and sensibly in that setting. It must look to see whether the case involved any difficult legal issues or had other complexities which might have benefited from analysis by a trained legal mind. It should also look at the nature of the Crown case and at how effectively the accused in fact managed to convey the nature of the defence in cross-examination of Crown witnesses, examining defence witnesses, giving evidence (if the accused chose to do so) and addressing submissions to the Court. Mason J pointed out in [McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575 at 583] that the calibre of the accused’s forensic performance is a relevant but not a critical factor in the determination of fairness. The appeal Court should not be too ready to conclude from a reading of the transcript that the defence has been conducted as competently as counsel, with professional skill and detachment, would likely have done. A transcript does not necessarily convey the full atmosphere of the courtroom and in particular the demeanour of the accused before the jury. A fortiori, if the full transcript, including addresses, is not available.

[51] In light of those observations it is perhaps understandable that trial judges should resort to the appointment of amicus in self-representation cases. The Supreme Court’s analysis is directed at an appellate court, and so reflects a post-trial perspective. At the time at which a trial judge must make decisions about the conduct of the trial, he or she will not be able to make any assessment about some of the factors that the Court in Condon identified as relevant to the fairness assessment. Naturally enough, trial judges will be reluctant to preside over trials that are subsequently seen to be miscarriages of justice, and so are likely to do what they can to avoid such an outcome. The appointment of an amicus is an obvious response.
[52] But such appointments can, as this Court said in Hill, create problems. There may be some role confusion – is the primary role of the amicus to assist the court or to assist the accused? If in a particular case an amicus attempts to fulfil both roles, there may be potential for conflict or, at least, misunderstanding and confusion, particularly in relation to issues such as legal professional privilege. Further, a self-represented accused may regard the amicus with suspicion and see the amicus as interfering with the way he or she wishes to run the case. Besides issues of this type, there are systemic issues, in particular, to what extent does the appointment of amici in these cases undermine the legal aid system by creating a separate form of state-funded assistance?
[53] Given such considerations, we take the opportunity to reiterate what this Court said in Hill, namely that the appointment of amici in criminal cases should be rare. Where an accused indicates that he or she wishes to represent him or herself, the court should ensure that he or she is aware of the right to counsel and of the availability of legal aid. The accused should be afforded an adequate opportunity first, to consider whether to take advantage of those rights and second, to exercise them if that is what he or she wants. But it is important not to overlook that accused persons have the right to present their defences personally. This is confirmed by s 354 of the Crimes Act, which provides:

Right to be defended

Every person accused of any crime may make his full defence thereto by himself or by counsel.

As this Court emphasised in R v Cumming [2006] 2 NZLR 597 at [40] – [46], the right to self-representation is an important right, the purpose of which is to “affirm the dignity and autonomy” of accused persons in addressing criminal charges (quoting McKaskle v Wiggins (1984) 456 US 168 per O’Connor J).

[54] Accordingly, if, having been appropriately advised and given sufficient time (so that the decision is informed and deliberate), an accused chooses self-representation, that choice must be respected, and the accused must live with its consequences. Cases of the type discussed by the Court in Condon at [80] are an exception to this, but they will be rare.
[55] The role of an amicus varies with context. Where an amicus is appointed in a criminal case it is accepted that he or she may act in a partisan way, in the sense that he or she may present the arguments that a party would normally present – see the discussion in Solicitor-General v Miss Alice [2007] 1 NZLR 655 at [17]-[18] (CA).
[56] Where an accused does choose self-representation, the trial Judge has special responsibilities and must of course meet them (see Cumming at [51]-[52]).
[57] Returning to the present case, in the first of the two passages cited at [21] above, the Judge explained the role of amicus as being to assist the Court. There was no mention of the amicus being a resource available to Mr McFarland, much less to any possible representational role. In the second of her statements, however, the Judge said that Mr McFarland could ask the amicus about procedural matters or about anything else. He could also obtain assistance from the amicus, if he requested it. This seems to have contemplated the possibility of some representational role, and Mr Trotter’s comments to Mr McFarland before the trial began also made it clear that he was available to assist Mr McFarland in whatever capacity Mr McFarland wished.
[58] In fact Mr Trotter’s role as amicus seems to have expanded during the course of the trial, at the request of Mr McFarland. Mr Trotter conducted much of the case on Mr McFarland’s behalf, including dealing with jury selection, cross-examining Crown witnesses, leading evidence from defence witnesses, and delivering the opening and closing addresses. However, he did not act for Mr McFarland in the way he would have had he been instructed by Mr McFarland. Generally speaking, he left it to Mr McFarland to consult and involve him to the extent that he wished.
[59] In principle, there can be no objection to an amicus acting in this way if that is what the accused wants and no issue of conflict of interest arises. In Hill the accused did not want that type of assistance. While we agree with Mr Pyke that Mr Trotter’s role was not clearly defined at the beginning of the trial, we are satisfied that what Mr Trotter did during the trial by way of representation, he did at Mr McFarland’s request or with his consent. No conflict of interest issue appears to have arisen, although we should make one comment on that aspect. In her report, the Judge, speaking of the terms of Mr Trotter’s appointment, said “[n]aturally he was to report his involvement with Mr McFarland to me”. Mr Pyke asked Mr Trotter in cross-examination if the Judge had directed him to report in that way. He said that she had not, and no such requirement is recorded in the transcript referred to earlier. It would be difficult or impossible for an amicus to comply with such a direction, at least in cases where the role of amicus is essentially to present the accused’s case. In this context, we note that Mr Trotter said in cross-examination that he considered his discussions with Mr McFarland to be protected by legal professional privilege. In any event, he did not report to the Judge.
[60] We accept that there was some lack of clarity at the outset of the trial about the role that Mr Trotter would perform. While that is undesirable, it may be inevitable in this type of case where the role may develop over time. But, given that Mr Trotter in effect represented Mr McFarland at those points in the trial where Mr McFarland wanted representation and advised him when he sought advice, the real question is, as Mr Pyke recognised, whether there was anything in the way that the amicus dealt with matters that gives rise to the possibility of a miscarriage of justice. We now turn to that aspect.
(ii) Inadequate preparation and effect on appellant
[61] Mr Pyke submitted that the lateness of the appointment meant that Mr Trotter was inadequately prepared, and that this impacted on Mr McFarland, who as a result gave evidence in a way that was halting and hesitant. We reject this submission.
[62] As we have said, this was not a complicated case. Judging by the way that Mr Trotter was able to participate in the trial, he had sufficient time to prepare. He was certainly able to put Mr McFarland’s defence fully to the complainant. One of Mr McFarland’s complaints was that Mr Trotter did not ensure that Mr Johnson was called. (He was the complainant’s flatmate, with whom Mr McFarland said he was discussing his boat, outside the room, at the time the complainant’s finger was severed.) However, although we were advised at one stage that we would be provided with an affidavit by Mr Johnson setting out the evidence that he could have given, this did not occur. Without an affidavit from Mr Johnson setting out what he would have said in evidence, we cannot make any assessment of the significance of this alleged failure. Accordingly, we can take this aspect no further.
[63] We also reject the claim that Mr McFarland’s capacity to tell his side of the story in evidence was affected as a result of Mr Trotter’s late appointment. The transcript shows that Mr McFarland was able in his evidence in chief to set out his version of events fully. Having seen him give evidence ourselves, we do not think it at all likely that his ability to give his version of events was significantly affected by what occurred.
(iii) Errors by amicus
[64] As we have said, Mr Pyke complained about four matters under this head (see [46](c) above). We will deal with each complaint in turn. Before we do so, however, we summarise the effect of the leading authority in this area, R v Sungswan [2006] 1 NZLR 730 (SC).
[65] In R v Scurrah CA159/06 12 September 2006 this Court summarised the effect of Sungswan in this way:

[17] The approach appears to be ... to ask first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes’, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.

[18] On the other hand, where counsel has made a tactical or other decision which was reasonable in the context of the trial, an appeal will not ordinarily be allowed even though there is a possibility that the decision affected the outcome of the trial. This reflects the reality that trial counsel must make decisions before and during the trial, exercising their best judgment in the circumstances as they exist at the time. Simply because, with hindsight, such a decision is seen to have reduced the chance of the accused achieving a favourable outcome does not mean that there has been a miscarriage of justice. Nor will there have been a miscarriage of justice simply because some other decision is thought, with hindsight, to have offered a better prospect of an outcome favourable to the accused than the decision made.

[19] This analysis will be sufficient to deal with most cases.

[20] But there will be rare cases where, although there was no error on the part of counsel (in the sense that what counsel did, or did not, do was objectively reasonable at the time), an appeal will be allowed because there is a real risk that there has been a miscarriage of justice.

We consider the specific complaints against this background.

[66] First, Mr Pyke complained that Mr Trotter allowed Mr Newell to confer with Mr McFarland concerning Mr Brooks proposed guilty plea in his absence. This highlights one of the problems that can arise where an amicus is appointed. Mr McFarland was representing himself. Mr Trotter was not acting for him, but did present much of Mr McFarland’s case on his behalf. As we have said, he did what Mr McFarland asked him to do and gave advice when Mr McFarland sought it. As Mr McFarland remained a self-represented accused, Mr Newell was entitled to talk to him directly. Mr McFarland does not seem to have sought Mr Trotter’s assistance on this aspect of the case to any great extent. In any event, even if Mr Newell was wrong to speak to Mr McFarland directly, it is difficult to see how that could give rise to a miscarriage of justice in the present case. We do not believe that Mr McFarland was persuaded to do something that he did not want to do. In the result, we see nothing in this point.
[67] Second, Mr Pyke complained that Mr Trotter should not have called Mr Brooks as a witness when the evidence which he proposed to give was inconsistent with his guilty plea (his evidence was that the severing of the finger was accidental).
[68] However, it is clear from the material before the Court that Mr Brooks wished to give evidence exonerating Mr McFarland and, more importantly, that that is what Mr McFarland wanted. Mr Trotter had no basis for refusing to do what Mr McFarland wanted (Mr Trotter said that Mr McFarland was “adamant” about it). Further, ignoring for the moment the point to be made next, there were obvious tactical reasons for calling Mr Brooks. There were four people who could have given evidence about what occurred – the complainant, Mr McFarland, Mr Brooks and Mr Johnson. The complainant and Mr McFarland had competing versions of events. Mr Brooks provided support for Mr McFarland’s version. Given that Mr Johnson was not called as a witness, it cannot be said that the calling of Mr Brooks was an error, much less an error sufficient to give rise to a miscarriage of justice (see Scurrah at [18]).
[69] Third, Mr Pyke complained that Mr Trotter’s decisions, particularly the one just discussed, provided a foundation for the Crown’s submission that Mr Brooks was Mr McFarland’s “fall guy”. Mr Trotter accepted in cross-examination that he had not advised Mr McFarland that a possible result of calling Mr Brooks was that the Crown would make such a submission. Again, however, we do not consider that this was an error capable of giving rise to a miscarriage of justice. The reality is that Mr McFarland wanted Mr Brooks to give evidence. It is implausible to suggest that he would have changed his view if Mr Trotter had warned him that the Crown might make a submission of the type made. The critical thing from Mr McFarland’s perspective was that Mr Brooks supported his claim that he was not present when the finger was removed and had nothing to do with it.
[70] Finally, Mr Pyke complained that Mr Trotter had erred in advising Mr McFarland against recalling the complainant. In cross-examination Mr Trotter accepted that that was the thrust of his advice to Mr McFarland.
[71] Again, however, we do not see how that can have led to a miscarriage of justice in the present case. In closing on behalf of Mr McFarland, Mr Trotter argued that the complainant had been shown up as “a liar” in some respects and had an incentive to lie about what had happened in order to obtain a lenient sentence on the aggravated robbery charge. The Judge repeated that in her summing up when she summarised the defence case. She said:

So the defence says, why would [the complainant] lie about [Mr] McFarland’s involvement with his injury and the defence says there are very good reasons. First, [the complainant] would have problems because of the aggravated robbery that he’d committed earlier. He’d have problems in prison where he’d undoubtedly go and he’d be poorly considered by others in prison when he was back there on sentence because it would be known that he’d got offside with the Headhunters and he’d be coming back with a chopped off finger and it would probably be known how that came about. So, instead he stretched the truth in order to look after himself on his sentencing for aggravated robbery. He got two years and leave to serve it by way of home detention which, says the defence, is not a bad outcome for an aggravated robbery. So he lied about [Mr] McFarland’s involvement and the circumstances of how his finger came to be cut off having previously, whilst in prison, lied about James Barnes.

(Emphasis added.)

[72] If the complainant had been recalled, Mr Trotter may have been able to force the complainant to accept that his negative answer to the question whether he had received any “consideration” on sentence for his co-operation was untruthful (although his answer may be explained by the use of the word “consideration” in the question, a concept familiar enough to lawyers but perhaps not to others). But this would have been a marginal advance on the submission that Mr Trotter did make and the Judge summarised. And it would have run the risk that the complainant would disclose that he was on the witness protection programme, which may have been prejudicial to Mr McFarland.
[73] Mr Trotter said that when he spoke to Mr McFarland about the recall of the complainant, Mr McFarland had wanted him recalled to put to him matters that had already been dealt with in cross-examination. Mr Trotter explained that this was not possible as the recall would be for a limited purpose. Ultimately, as the transcript quoted at [44] above shows, Mr McFarland decided that he did not wish to have the complainant recalled. To the extent that this was the result of Mr Trotter’s advice, this seems to us to fall within the class of case mentioned at [18] of Scurrah (quoted at [65] above).
(iv) Conclusion
[74] For the reasons given above we do not accept that the fair trial issues raised by the appellant give rise, individually or collectively, to the possibility of a miscarriage of justice. We turn now to consider the arguments raised under the “errors of law” head.

(c) Errors of law

[75] Under this head, Mr Pyke raised four points in respect of which he argued that the Judge’s directions to the jury were wrong or inadequate. These related to:

(a) Television coverage;

(b) Standard of proof;

(c) Joint enterprise;

(d) Gang related allegations and Crown counsel’s comments.
[76] We deal with each in turn.

(i) Television coverage

[77] Mr Pyke argued that the Judge, having granted TV3 permission to film, should have instructed the jury to ignore television and other media reporting of the trial.
[78] At the beginning of her summing up, Judge Sharp made the usual preliminary points. In particular, she said:

The second of these three important preliminary points is that you must come to that verdict solely upon the evidence that’s been put before you in this Court. So I repeat what I said to you at the beginning of the trial: if any of you have heard or read anything about this case or any person involved in it before you took your place on the jury then please would you dismiss that from your mind because the law requires that an accused person is to be judged only upon the evidence sworn to in this Court. Please consider all of that evidence and when you weigh it please bear in mind the submissions that have been made to you by Crown counsel and by Mr Trotter in his position as counsel assisting the Court but acting on the instructions that have been given to him by Mr McFarland and then please reach your verdict upon it abiding by the directions that I give you as to the law.

[79] The extract indicates that the Judge had made a similar comment when making her introductory remarks to the jury. We do not accept that there was a need for something more in the present case. What the Judge said made it clear to the jury that they were to decide the case solely on the basis of the evidence presented to them.

(ii) Standard of proof
[80] Mr Pyke submitted that the Judge erred in the direction which she gave in relation to the standard of proof, and referred to the discussion in R v Wanhalla [2007] 2 NZLR 573 (CA). He also said that when the jury submitted a question about the standard of proof, the Judge simply repeated what she had earlier said, rather than attempting to identify and address the jury’s difficulty. Mr Pyke said that it was possible that that the jury “was left to decide whether the defence was reasonable, rather than being directed to the Crown’s obligation to satisfy them to the point of being sure”.
[81] In her summing up, having discussed the onus of proof, the Judge said:

The law is that the Crown must prove this one charge and each element of it beyond reasonable doubt before you may bring in a verdict of guilty. Reasonable means just what it says, that is a doubt which you find is reasonable in the circumstances of this case. It follows that before you could convict any accused on any charge therefore you must be satisfied from the evidence of the accused’s guilt. If you are so satisfied then it’s your duty in accordance with the oath that each of you took to find the accused guilty, if however you are left with a reasonable doubt then it’s equally your duty to acquit, which means find not guilty.

[82] The Judge used this language again when discussing the separate ingredients of the offence. Further, in the course of their deliberations the jury raised two questions with the Judge, one concerning reasonable doubt and one concerning inferences. In response to the question “what is reasonable doubt?”, the Judge said:

As to reasonable doubt, as you know the law requires that the Crown prove each element of this charge beyond reasonable doubt before you may bring in a verdict of guilty. Reasonable means just what it says, it means a doubt which you find is reasonable in the circumstances of this case. It follows that before you can convict this accused on this charge you must be satisfied from the evidence of his guilt and if you are so satisfied then it’s your duty in accordance with the oath that each of you took to find him guilty. If, on the other hand, you are left with a reasonable doubt then it’s equally your duty to find him not guilty.

I repeat that, reasonable means just exactly what it says, it’s a doubt which you find is reasonable in the circumstances of this case. You must be satisfied from the evidence of the accused’s guilt before you can convict.

[83] These directions were given before this Court had delivered its decision in Wanhalla. The directions did not use the language that had become common in directions on the standard of proof prior to Wanhalla (and which the Court in Wanhalla adopted), namely to say that the jury had to be “sure” before they could convict (the Judge used “satisfied” instead).
[84] As Mr Pyke submitted, a direction which said that a reasonable doubt was “a doubt which you as the jury decide is reasonable on the facts of this particular case” was considered by this Court in R v Bowen [2007] NZCA 253 to be unsatisfactory. This was because there was no reference to the jury being “sure” of guilt and because the words suggested that the standard of “reasonable doubt” was variable on the basis of the facts of individual cases (at [22]-[24]). However, in that case the appeal was dismissed because the Crown had emphasised the need for the jury to be “sure” in both its opening and closing addresses, and the Judge had repeated that when summarising the Crown case. Thus, when the trial was considered as a whole, the jury had been informed adequately of the standard of proof. There was accordingly no miscarriage of justice.
[85] Here the Judge used the word “satisfied” rather than “sure”. The question is whether this may have resulted in the jury misunderstanding the standard that the Crown had to reach in order to succeed.
[86] “Satisfied” in this context means “convinced” or “free from doubt or uncertainty” (see the Oxford English Dictionary). A jury which is “convinced” or “free from doubt or uncertainty” is “sure”. This Court has held previously that the use of the word “satisfied” in describing the standard of proof is sufficient if used in conjunction with a direction that proof must be beyond a reasonable doubt.
[87] In R v Kaki CA394/92 29 March 1993 this Court said:

There have been many warnings against expanding on the meaning of “beyond reasonable doubt’. See for example R v Speakman (1989) 5 CRNZ 250, 260, R v Brown (1990) 5 CRNZ 606, 609, R v Routh [1992] 1 NZLR 290. The equation of being satisfied beyond reasonable doubt with being satisfied or being sure has we understand become quite common. There is much to be said for the more traditional formulation referred to in Speakman. But inasmuch as in the end a reasonable doubt is one which the particular jury entertains in the particular case, it is not a misdirection to tell them that they must be satisfied or sure when those words are used in conjunction with the direction that proof must be beyond a reasonable doubt.

In that case the trial Judge did on one occasion use the word “sure” as well as “satisfied”. However, in R v F CA376/93 17 December 1993 and R v Shire CA400/05 3 July 2006 directions using only the word “satisfied” were upheld (at 8-9 and at [23] – [25] respectively).

[88] In addition, in this case, ultimately the question for the jury was whether or not they believed the complainant. Referring to the conflicting evidence of the complainant and Mr McFarland, the Judge said:

In order to determine whether or not the Crown has proved its case against the accused here you are going to have to make a credibility assessment whether you believe [the complainant] or whether you believe Messrs Brooks and McFarland, and I suggest to you, just, (I think), as the Crown said, that if you were to believe [the complainant’s] account then there would be no question but that the Crown would have proved the charge against Mr McFarland.

[89] The first part of this statement is unsatisfactory, as it runs the risk that the jury would see the case as a straight credibility contest between the complainant and the accused (see R v Bensitel CA133/06 5 October 2006 at [30]). In terms of the Crown establishing liability, the critical point was not whether the jury believed Mr McFarland or Mr Brooks but whether they believed the complainant.
[90] However, in the balance of her summing up, the Judge made it clear that the important issue was whether the jury believed the complainant, and also emphasised (through the tripartite direction) that if the jury disbelieved all or some of Mr McFarland’s evidence, that did not mean that the Crown had established its case. In that context the Judge emphasised again the need for the Crown to prove its case beyond a reasonable doubt.
[91] Accordingly, we consider that the summing up, read as a whole, and the Judge’s answer to the jury’s question, sufficiently explained both the burden and standard of proof. Although the Judge essentially repeated her original direction in answer to the jury’s question concerning reasonable doubt, this Court has previously warned of the dangers of judges’ attempting additional explanation using different language when responding to jury questions – see, for example, R v A(CA274/99) CA274/99 28 October 1999 at [18].
(iii) Joint enterprise
[92] Mr Pyke complained about the Judge’s direction on the intent necessary for party liability. The Judge said:

Intent means that the act in question must be deliberate. By its nature intent is not capable of direct proof; it rests on inferences from what the evidence proves that a person did or said before, at or after the event as well as the surrounding circumstances and the nature of the act itself. The accused must have meant to do it, it must have been one of his aims or goals. When talking about this, of course, I’m aware that [the complainant] did not give evidence Mr McFarland himself chopped off his finger. You’ll remember his evidence was to the effect that he was virtually coerced into holding the knife over his finger himself, this is [the complainant], and that [Mr] Brooks then slammed down on it with a sledgehammer but that [Mr] McFarland was in the room. That’s what the Crown says happened. You may possibly be wondering whether since he didn’t do it himself, and didn’t therefore physically commit the maiming, whether he can, nevertheless, be found guilty of the offence. The answer to that is that the Crown case is put in such a way that both men were responsible for the maiming. One acted at the direction of the other; it was a joint enterprise and just because [Mr] McFarland didn’t actually commit the physical act himself is immaterial. As a matter of law that is correct. If you find that [the complainant’s] account is correct and it happened as he told you, then at law he is just as guilty of the act, the maiming and having the intent to commit grievous bodily harm as if he’d held the knife himself or if he’d actually brought the sledgehammer down himself on the knife on the finger.

(Empahsis added.)

[93] Mr Pyke’s complaint about this was that, as a result of the italicised words, the jury might have overlooked that they needed to be sure that Mr McFarland had the necessary intention to instigate, incite or encourage Mr Brook’s act. He said that there was a danger that the jury might think that just because Mr McFarland was present in the room when Mr Brooks severed the complainant’s finger, he must have had to necessary intention.
[94] We do not accept that there was a risk of error in the way that Mr Pyke suggests.
[95] In the paragraph preceding the one just quoted, the Judge said that the Crown had to establish that Mr McFarland had the necessary intention:

... the Crown is asking you to draw the inference from all the circumstances that the accused did have a certain intention at the time of the maiming, namely an intention to cause grievous bodily harm. It’s for you to decide whether that is the appropriate and reasonable inference to draw on all the evidence that you’ve heard but of course you must not speculate or guess.

[96] The Judge then went on to the passage quoted at [92]. She noted that the Crown case was that Mr McFarland had directed Mr Brooks to sever the complainant’s finger. The Crown theory of the case was based on the complainant’s account of events. As we have said, the consequence of the jury accepting the complainant’s account was that they would accept the Crown’s contention that Mr McFarland directed Mr Brooks to cut off the complainant’s finger. That being so, the ingredients of the offence would necessarily have been established in relation to Mr McFarland. The Judge was simply dealing with the case as it had been presented by the Crown and relating the necessary ingredients to that. We see no error in this.

(iv) Gang associations and comments of counsel for Crown

[97] Mr Pyke said that the Judge failed to give adequate directions concerning evidence as to the appellant’s role in the Headhunters. He said that the jury ought to have been directed not to reason on a propensity basis. In addition, Mr Pyke pointed out that counsel for the Crown had cross-examined Mr McFarland and Mr Brooks on the basis that Mr McFarland had arranged for Mr Brooks to be the “fall guy” for this offence, an allegation which both strongly denied. Crown counsel maintained this line in his closing address. Mr Pyke said that the Judge should have directed that counsel’s questions were not evidence, given the strength with which counsel put this argument and the absence of any proof of it.
[98] This Court has considered the question of gang affiliations and the need for appropriate directions in various contexts. In R v McGlaughlin CA 456/04 8 September 2005 this Court said:

[56] It will often be desirable to give a direction of the kind contemplated in [R v Vaise CA336/04 26 November 2004] in a case of this kind where an issue of gang affiliation is raised in respect of an accused. That is because there can be a risk of illegitimate prejudice through inappropriate propensity reasoning and in some contexts, reference to gang affiliations may give rise to material prejudice. In Vaise, the issue of gang affiliation was directly relevant to the complainant’s evidence that she was compliant [to unwanted sexual intercourse] through his gang involvement.

[57] As a general rule, we do not see any need to give a direction of this kind in relation to a witness. But there may be exceptional cases when such a direction is desirable, where, for example, the prosecutor has emphasised gang connections affecting a witness and invites the jury to conclude that there was a similar connection involving the accused.

[99] In the present case, as well as telling the jury that they must determine the case solely on the basis of the evidence presented to them, the Judge gave the standard warning about prejudice as follows:

Should you have any feelings of prejudice or sympathy one way or the other then please put them aside so that you arrive at your verdict conscientiously and dispassionately.

She did not, however, go further and say that the jury should be careful not to allow themselves to be prejudiced against the appellant because of his gang involvement.

[100] When giving his evidence in chief, the complainant said that he and Mr Johnson socialised with members of the Headhunters. He said that he had seen some Headhunters beating Mr Barnes, and this led to the request which he said Mr McFarland made of him. The complainant accepted that he had told a fellow prisoner (a Headhunter) that he had been asked to assist in the disposal of Mr Barnes’ body because he wanted to “fit in” in the prison environment. Mr McFarland said in his defence that the complainant had made up the story about his involvement in the severing of the finger so that he could curry favour with the police and obtain a lenient sentence on the aggravated robbery charge. The complainant’s reason for doing this, Mr McFarland said, was that, having attempted to convey the impression that he was someone he was not (ie, a person closely connected to the Headhunters), the complainant faced exposure when he returned to prison. As a result, the complainant was worried that he would be given a difficult time and so wanted to avoid prison if he could.
[101] Mr Trotter put Mr McFarland’s theory of the case to the complainant in cross-examination. Obviously that theory had greater force if the jury was aware of the Headhunter connection. It suited Mr McFarland’s purposes to emphasise it, as is reflected in the Judge’s summary of the defence case to the jury (see [71] above).
[102] On balance, we consider that the Judge should have warned the jury to put aside any prejudice or preconceptions arising from the gang associations of those involved in this case. Despite this, we do not consider that the failure to do so renders the verdict unsafe. As we have said, Mr McFarland himself emphasised the gang connection to explain why the complainant had reason to lie about Mr McFarland’s involvement in the offending. Further, this was a case where all those involved, including the complainant, had some form of gang connection, so any warning would apply as much to the complainant as to the others.
[103] As to the second element of this complaint, we accept that the Crown emphasised the gang connection in cross-examination of Messrs McFarland and Brooks, and did make the “fall guy” submission in closing, which the Judge simply repeated (briefly) in her summing up. Again, we think it would have been desirable for the Judge to have reminded the jury that assertions by counsel are not evidence but do not consider that the omission of such a warning raises the possibility that the verdict is unsafe. The Crown put the “fall guy” proposition to Mr Brooks and to Mr McFarland in cross-examination and each denied it vigorously. While the Judge might have cautioned the jury about the proposition in her summing up, the critical issue for the jury was whether or not they believed the complainant. As we have said, the Judge made it clear to the jury that that was to be the focus of their deliberations.

(v) Conclusion

[104] As will be apparent from the foregoing discussion, there are several respects in which we consider that the Judge’s summing up could have been better. We have said that none individually raises the possibility of a miscarriage of justice. But the question remains whether, cumulatively, they do raise that possibility. We consider that they do not. This was a strong Crown case. As we discuss below, Mr Brooks’ explanation that the injury was self-inflicted or accidental is inherently incredible. So is the suggestion that Mr Brooks acted alone. We think it quite implausible to suggest that Mr Brooks brought the complainant to Mr McFarland’s house and once there, independently and spontaneously, cut off his finger. We are satisfied that there is no risk of a miscarriage of justice.

Sentence

[105] Mr McFarland was sentenced to eight years imprisonment, with a four year minimum period of imprisonment. Although the appeal against sentence was not abandoned, Mr Pyke rightly accepted that there was nothing which he could advance to support an argument that the sentence was manifestly excessive. Accordingly, if there was compliance with s 30 of the Sentencing Act, the sentence must stand.
[106] As will be clear from what we have said, we consider that the requirements of s 30 were met in this case. The appeal against sentence must therefore fail.

Mr Brooks’ appeal: CA 455/06

[107] We deal with Mr Brooks’ appeals against conviction and against sentence in turn.

Conviction

[108] The essence of Mr Brooks’ appeal was that his conviction was a miscarriage of justice as a result of the conduct of his trial counsel, Mr Newell. In his affidavit Mr Brooks raised a range of matters. He said that Mr Newell:

(a) Was not prepared, did not answer calls from him and did not arrange for a crucial witness, Mr Johnson, to give evidence;

(b) Did not advance the defence of accident and pressured him to plead guilty to the maiming charge;

(c) Did not seek an adjournment on the morning of the trial when it was clear that Mr Johnson would not be present, did not cross-examine the complainant and did not take his instructions in relation to the TV3 application.

[109] In his affidavit Mr Newell noted that, prior to the trial, he had met with Mr Brooks on one occasion at Paremoremo Prison, on six occasions at Auckland Central Remand Prison and on one occasion at the Auckland District Court. He also said that he had appeared for Mr Brooks at a number of callovers and on two standby trial dates. Mr Newell said that on the various occasions that he meet with Mr Brooks, he was not given clear instructions on the nature of Mr Brooks’ defence. Mr Brooks had, on their fifth meeting which was immediately before a standby trial, raised the question of “accident” or “recklessness”, apparently on the basis of something that he had read in Adams on Criminal Law, but provided little detail in terms of explaining his version of events. He said that he would have to discuss the matter with Mr McFarland.
[110] By the time of the trial, Mr Newell had, he said, been given three different versions of what happened – that the complainant had:

(a) Chopped his own finger off;

(b) Failed to pull his finger away when Mr Brooks brought the knife down;

(c) Moved his finger into the path of the knife as Mr Brooks brought it down.

[111] Mr Newell deposed that he explained that the defence of accidental maiming was implausible and said that he thought that the point of going to trial was to defend the kidnapping charge. He said that Mr Brooks took the position that they should wait to see whether the complainant did give evidence and what the nature of that evidence was before making any final decisions.
[112] Following the complainant’s evidence in chief, Mr Newell applied for, and obtained, a discharge on the kidnapping charge. After that, he discussed with Mr Brooks the merits of a guilty plea to the maiming charge. At that point Mr Brooks said that he would plead guilty.
[113] The next morning Mr Newell and Mr Brooks discussed the matter again. Mr Newell said that he advised Mr Brooks that he considered that it was in his best interests to plead guilty so as to get the benefit of a significant discount for a guilty plea. He advised Mr Brooks that the defence of accident was untenable. Mr Brooks then gave written instructions that he wished to plead guilty, and did so.
[114] Against this background, we turn to the various complaints made by Mr Tennet on behalf of Mr Brooks. The complaints about the media application and the failure to call Mr Johnson, or to seek an adjournment when he did not appear, may be dealt with quickly. Even if true, the failure to take instructions in relation to the media application could not possibly have led to a miscarriage of justice. In relation to Mr Johnson, as we have said at [62] above, there is no material before us to show that he was prepared to give evidence or what the nature of his evidence would have been. Accordingly, we have no basis to say that there has been a miscarriage of justice arising from the fact that he was not called.
[115] As to the other complaints, which can be summarised as lack of preparation, failure to follow instructions and improper pressure to plead guilty, we consider that none has any substance.
[116] As we have said, this was a relatively straightforward case. It is clear that Mr Newell had numerous meetings with Mr Brooks prior to trial, that Mr Books gave varying accounts of what had happened and that he would not provide Mr Newell with firm instructions or a brief of evidence. Mr Newell considered that it was likely that the Crown would be unable to prove the kidnapping charge and obtained a discharge on that. He explained to Mr Brooks the difficulties he faced in advancing the defence that the severing of the finger was accidental or the result of recklessness and the benefits he would obtain from pleading guilty. In so doing, he fulfilled the role expected of counsel. The suggestion that he prepared inadequately is unsustainable.
[117] Mr Tennet submitted that, on his version of events, Mr Brooks might have been guilty of an offence under s 188(2) of the Crimes Act where “reckless disregard for the safety of others” is sufficient, but not of an offence under s 188(1) which requires “intent to cause grievous bodily harm”. He submitted that Mr Newell had, in effect, pressured Mr Brooks to plead guilty to the s 188(1) charge. In those circumstances, he said, it would be a miscarriage of justice to allow his conviction to stand.
[118] We do not accept that Mr Newell placed any improper pressure on Mr Brooks to plead guilty. In cross-examination Mr Brooks said that he understood that Mr Newell would have continued to represent him had he maintained his not guilty plea, that the decision whether to plead guilty was his and that he had a choice to make. Mr Brooks may now regret his decision, but the evidence shows that he made it deliberately and with full awareness of what he was doing (R v Le Page [2005] 2 NZLR 845 at [16] (CA)).

Sentence

[119] Mr Tennet accepted that, if the appeal against conviction was not successful, there was little he could say in support of the sentence appeal. In our view that was a sensible position. The starting point adopted, while stern, was within the range available and Mr Brooks received an appropriate discount. The end sentence was not manifestly excessive.

Result

[120] Mr Brooks’ application for an extension of time within which to file his appeal is granted.
[121] The appeals are dismissed.

Solicitors:
Crown Law Office, Wellington