The Queen v Nairn [2008] NZCA 553 (12 December 2008)

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The Queen v Nairn [2008] NZCA 553 (12 December 2008)

Last Updated: 18 December 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA468/2008

[2008] NZCA 553

THE QUEEN

v

NATHAN SHANE NAIRN

Hearing: 17 November 2008

Court: Arnold, Venning and Miller JJ

Counsel: B A Crowley for Appellant
T Epati and I E Murray for Crown

Judgment: 12 December 2008 at.3.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1] Following a jury trial before Gendall J, the appellant was convicted on two counts of aggravated robbery and two counts of kidnapping. He appeals against all convictions, on the basis of various aspects of the Judge’s summing up to the jury.

Factual background

[2] The case against the appellant was that he, together with his partner, Ms Williams, was involved in two separate robberies of the Auckland and Wellington offices of a foreign exchange and currency company known as An Ying.

The Auckland robbery

[3] It was alleged that on 15 November 2005 in the early afternoon the appellant and Ms Williams had gone to An Ying’s Auckland premises. The appellant was carrying a knife and Ms Williams a pistol-like firearm. When they entered the premises, Ms Williams pointed the gun at the receptionist while the appellant went through to the main office. The appellant went up to the main counter and, using his left hand as a prop, vaulted over it into the staff area. He took hold of one of the tellers, Ms Xing Zhao (Stella), and forced her to show him where the money was kept. He removed the contents of the cashier’s drawer (the equivalent of approximately NZ$100,000) and then vaulted back over the counter, again using his left hand as a prop. Several other staff members witnessed the robbery and it was recorded on CCTV.
[4] The police later lifted a shoe print and left-hand palm and fingerprints from the counter where the robber had vaulted over into the staff area. The fingerprints were established to be those of the appellant.
[5] The following day the appellant purchased a second hand motor vehicle for $5,810, which he paid in cash.
[6] Three months later, on 16 February 2006, the appellant rented a room at the Hutt Park Holiday Camp for three nights. There was a disturbance and the owner called the police. While searching the appellant’s room, the police found NZ$1,000 in cash, an imitation firearm and some knives.

The Wellington robbery

[7] On 30 June 2006 the Wellington premises of An Ying were robbed. The Crown alleged that the appellant and Ms Williams, together with two associates, carried out this robbery. The Crown said that the appellant was disguised, wearing sunglasses and a white painter’s mask, and that he was wearing gloves and carrying a pistol-like firearm. The other three were also disguised and were carrying knives.
[8] Two of the robbers detained people in the peripheral offices while the appellant and another knife-wielding associate went into the An Ying office. The knife-wielding associate grabbed a customer, Ms Weiwei Zhang, and held the knife to her head while the appellant, gun in hand, demanded that a teller, Ms Nannan Su (Candy), open the door to the staff area for him. After she had let him in to the staff area, the appellant grabbed her by the hair and dragged her over to a money drawer, from which he took some money. The four robbers then left the premises, having taken about NZ$7,000.
[9] On 14 November 2006, the police executed a search warrant at the appellant’s home address in Wellington (he had been renting the property since March 2005). A whiteboard and a notebook were found. The Crown said that both showed involvement with the robberies. Pages of the notebook had indentations from earlier pages that had been written on, then torn out. When analysed, the indentations revealed what the Crown said was the floorplan of An Ying’s Wellington premises. The appellant’s fingerprints were found on various pages of the notebook, in addition to one fingerprint belonging to Ms Williams.
[10] Ms Williams later accepted that she was one of those involved in the Auckland robbery and entered a plea of guilty to a charge relating to that robbery. The Crown did not proceed against her in relation to the Wellington robbery.
[11] At trial, the appellant gave evidence. He denied that he had carried out either robbery. He accepted that the fingerprints in An Ying’s Auckland premises were his, but said that they had been left when he had visited the premises with an Asian man to look them over so as to provide information to others. He denied that he had ever been to An Ying’s Wellington premises. He said that the notebook belonged to Ms Williams, but accepted that he had used it.

Basis of appeal

[12] Mr Crowley for the appellant advanced four grounds of appeal, namely that in his summing up the Judge:

(a) overstated the Crown case;

(b) misstated the defence case;
(c) inappropriately criticised defence counsel; and
(d) gave erroneous directions on propensity.

Mr Crowley accepted, however, that the case against the appellant in relation to the Auckland robbery was a strong one, particularly given the fingerprint evidence.

Discussion

Crown case overstated?

[13] Mr Crowley submitted that the Judge had overstated the Crown case by putting matters before the jury which were not part of the evidence, and by attributing arguments to the Crown which it did not make and were in any event not available to it.
[14] First, Mr Crowley said that the Judge repeatedly emphasised the proximity of the palm prints to the location of the shoe print on the counter and said that this was a Crown submission. Mr Crowley said that there was no evidence that the shoe print was proximate to the palm prints and the Crown did not emphasise the shoe print.
[15] The principal passages of the Judge’s summing up about which Mr Crowley complains are as follows:

[27] I will come later to items of [circumstantial] evidence which the Crown says exists here but essentially the Crown invites you to draw the inference that the [appellant] participated in the robbery of the Auckland premises, invites you to draw that inference from a number of circumstances. Its says that includes the palm print of the [appellant] on the counter of those premises enabling the logical and only inference to be drawn that it was he who is seen to be leaping over the counter in the video security footage.

[28] The Crown says that the footprint on the counter is that of the robber and the prints which accompany that of the robber are his. And that apart from one print which there was insufficient detail to identify, there are no other prints of palms on the counter. So the Crown’s case in that respect is the footprint is the robber, the only palm prints are robbers and the only palm prints are his. So the Crown says you can draw that inference. Well that is a matter for you.

Later, when summarising the Crown case, the Judge referred to the appellant’s palm prints being “on the counter in precisely the place where the robber’s footprint is” (at [107]).

[16] We consider that there is nothing in this point. Constable Ferguson said in evidence that he took “lifts” of the shoe print and the palm prints from the counter. Although he did not say how far the palm prints were from the footprint, he produced a photograph of the section of the counter from which he took the lifts. That photograph showed clearly that the footprint was close to the palm prints. Further, the Crown produced still photographs taken from CCTV footage of the robbery. These show the robber vaulting over the counter and planting his foot on the counter as he did so. Accordingly the Judge’s comments about the footprint being close to the palm prints were consistent with the evidence. Further, it clearly was the Crown case that the palm prints and the shoe print were those of the robber.
[17] Second, Mr Crowley said that the Judge “repeatedly emphasised the assumption that the robber in Auckland was wearing white shoes and combined this with evidence that one of the men involved in the Wellington robbery also wore white shoes”. Mr Crowley said that no witness had given evidence about the colour of the footwear worn by the person who jumped over the counter. Rather, he said, the Judge had looked at the CCTV footage of the Auckland robbery and concluded that the robber’s shoes were white. Furthermore, Mr Crowley pointed out that the Crown did not allege that the man in the white shoes in the Wellington robbery was the appellant.
[18] In his summing up the Judge identified the similarities in respect of the two robberies which the Crown said pointed to common perpetrators. Among the factors he identified was the following (at [77](j)):

[T]he Crown did not mention it as a common characteristic but you may consider it if you wish the evidence that the one robber, the male robber in the Auckland video is wearing white shoes and a male robber in Wellington, according to Ms Grogan was also wearing clean white tennis shoes.

Then the Judge returned to the point when he was summarising the Crown case, as follows:

[108] The person accompanying Ms Williams was described, you will see it, but described by the Auckland witnesses as Polynesian – this is Stella, 175 centimetres, big sunglasses, 20 to 30, black coat. Lucia – aged 20 to 30, tall, brown skin, 6.1 ft, Judy – tall, big sunglasses, 170 to 180 centimetres. The Crown says, apart from that in Auckland, there is, it has not said it, but you will notice the evidence of the white sandshoes on the man in Auckland and the man in Wellington. It does not mean it is the [appellant] but the Crown says, and it is entitled to say, that is another feature that it is the same man.

(Emphasis added.)

[19] As to Mr Crowley’s submission that there was no evidence that the Auckland robber wore white shoes, we reject it. The still photographs taken from the video footage clearly show that the offender who vaulted over the counter was wearing white shoes. The more important point is that although the evidence showed that one of the Wellington robbers wore white shoes, the Crown did not allege that that robber was the appellant. The final sentence of the passage just quoted does seem to suggest that the presence of white shoes on each occasion indicates that the same man was involved, and, to that extent, misstates the position. Further, the presence of white shoes on two different perpetrators at two robberies carried out in different cities, albeit on similar premises, does not, of itself, provide any basis for a “similarity” argument between the robberies.
[20] However, on its own, we do not consider that the Judge’s reference to white shoes could have led to a miscarriage of justice. We will return to the point when we undertake an overall assessment.
[21] Third, Mr Crowley noted that the Judge said that Ms Grogan had described one of the Wellington robbers as “a male, mid-20s, dark skin, sunglasses, dark mask, dark beanie, black coat and gaunt cheeks” (at [111]). Mr Crowley said that Ms Grogan made no reference in her evidence to “gaunt cheeks”. He said that the appellant had noticeably hollowed cheeks, so the Judge’s reference was prejudicial to the appellant.
[22] However, Mr Crowley drew the Judge’s attention to the error at the conclusion of the summing up. At the outset of his summing up, the Judge had followed the usual practice of instructing the jury as to the respective functions of judge and jury. He told the jury that factual matters were for them and that they should ignore anything he said about the evidence unless it accorded with their own independent view: at [3]. Despite that, when he was made aware of the error, the Judge indicated to Mr Crowley that he wanted to recall the jury to correct it. But Mr Crowley objected, preferring that the point not be emphasised. The Judge initially deferred to Mr Crowley’s view, but on reflection decided that he should recall the jury to correct the error, and he did so. In those circumstances, we see nothing in this point.

Defence case misstated?

[23] To deal with this ground of appeal we need to summarise the eyewitness evidence as it related to the person said by the Crown to be the appellant in the two robberies. Although the descriptions of the witnesses dealt with features other than height, height was the focus of Mr Crowley’s submission to us. Mr Crowley advised us from the Bar that the appellant’s height was 180 cms.
[24] In relation to the Auckland robbery, Xing Zhao (Stella) said that the robber was about 175 cms in height and of medium build; Xiao Luo (Lucia) described him as “tall” (6’ 1” or 185 cms) and thin; Pang Xin (Judy) said he was “about 170 to 180 cms” and of medium build.
[25] In relation to the Wellington robbery, Ms Underwood described the four people involved. She said there were three males “one very tall maybe 6ft” (i.e. 183 cms) and the other two shorter. (The Crown alleged the tallest of the three males was the appellant.) Under cross-examination she accepted that the tallest of the males may have been taller than 6 feet. Weiwei Zhang described seeing two robbers in the An Ying premises, one “very tall and so skinny” and another “a little bit fatter and shorter than him”. Nannan Su (Candy) described the taller of the two men who came into the An Ying premises as 185 to 190 cms in height. Michael Chen said that the man was “a tall guy, about 190 cms”.
[26] The defence case rested in part on this eyewitness evidence as to the height of the person said by the Crown to be the appellant in each of the robberies. The defence said that the eyewitnesses to the Auckland robbery had described the person who vaulted over the counter as a man of average height, about 180 cms. By contrast, the Wellington witnesses had described a taller man – around 190 cms in height. So, the defence argued, the man said by the Crown to be the appellant in each robbery could not have been the same man.
[27] Mr Crowley said that the Judge muddled the names and height estimates given by the witnesses, so that “the main plank of the defence case was ... completely dismissed, without any rational basis”.
[28] In his summing up the Judge noted that the critical issue in the case was identity and warned them of the difficulties with eyewitness identifications. He then summarised the evidence of the Auckland witnesses at [108] of his summing up (quoted at [18] above). There is no complaint about that summary.
[29] In relation to the Wellington robbery, the Judge referred to evidence from “Mr Underwood – 6ft, long dark coat, dark skin, goatee, longer hair, dark pants, oil skin jacket, possibly Polynesian but sure of some facial hair”. He said the witness “Zhao” “described a tall man, 185 to 190, dark skin, part Maori, 20s, short beard, white mask, sunglasses, in charge and yelling all the time”: at [111].
[30] This summary is inaccurate because it refers to “Mr” Underwood rather than Ms Underwood, and the evidence attributed to “Zhao” (who was an Auckland witness) is in fact the evidence of Nanna Su (Candy).
[31] Then the Judge said:

[115] Mr Crowley took you through the witnesses’ descriptions and said to treat it with care and that is right, and I have told you that. We all know when events happen quickly that you can be mistaken and there is a clear example of that. Mr Crowley carefully took you through the height estimates of the various staff members, and I have mentioned them to you. We had them from 170 to 180 for Stella, 6.1 ft – Mr Underwood, 185 to 190 for Zhao. The defence says, and the evidence was that he is 180, therefore it is unreliable, and the defence says the best opportunity was Zhao – 185 to 190, and therefore there has got to be some real doubt that it is the [appellant], and you will bear that in mind.

[32] Mr Crowley pointed to several errors in this paragraph. First, the erroneous reference to “Mr” Underwood is repeated. Mr Crowley said that this may have confused the jury. Second, he pointed out that “Stella” and “Zhao” are the same person. She was an Auckland witness who gave a height of 175 cms, so that neither of the ranges attributed to her accurately states her evidence.
[33] As we have said, Mr Crowley argued that the consequence of these errors was that the defence case was undermined.
[34] Ms Epati for the Crown accepted that the Judge did mix up the names of some of the witnesses and their height descriptions in [115] of the summing up. However, she argued that the Judge emphasised to the jury defence counsel’s submission that the witnesses’ descriptions should be treated with care.
[35] Clearly the Judge’s description of the evidence was muddled in the respects identified above. But we do not consider that there was any risk of a miscarriage of justice, at least taken on its own.
[36] First, the Judge clearly identified the basic thrust of the defence case, namely that the height estimates of the witnesses were such that there must be a reasonable doubt that the person identified as the appellant in the two robberies was the same person. Second, he warned the jury of the need for special care with eyewitness identifications. Third, as we have said above, he told the jury that matters of fact were for them and that they should ignore anything he said about the facts that they did not agree with. Fourth, it is most improbable that the jury would have retained the precise details of the height evidence summarised by the Judge in their minds (as opposed to its general effect). The jury had seen photographic and video images of the robbers and they had the notes of evidence. The witnesses had given descriptive details besides height, which is in any event often difficult to estimate with precision. Inevitably the jury would have worked through the evidence as a whole in the course of their deliberations in order to assess the case in light of the issues raised by the defence. (Counsel advised that the jury deliberated for some hours.) Finally, the evidence against the appellant in respect of the Auckland robbery was overwhelming, in particular, the presence of his fingerprints on the counter and the photographic evidence. The explanation that he gave for the fingerprints was simply not credible. (We accept, however, that the evidence in relation to the Wellington robbery was less compelling.)
[37] There is a further point. Although Mr Crowley raised with the Judge the mistaken reference to “gaunt cheeks” at the conclusion of the summing up, he did not raise the muddled references to the height evidence or any concern that the jury might have misunderstood the defence case as a result of those references. Mr Crowley said that he did not consider that there was any obligation on him as defence counsel to do so as the Judge had an absolute obligation to put the defence case to the jury.
[38] In our view, Mr Crowley should have raised the matter with the Judge if he was concerned that the Judge had undermined the defence case by muddling the height evidence. It is not appropriate that counsel “save” points for appeal: see R v Tennant [1989] 2 NZLR 271 at 277 (CA). Mr Crowley’s failure to raise this issue with the Judge may be an indication that he did not then see it as being as significant as he now does.

Criticism of defence counsel

[39] During the course of his summing up, the Judge said:

[116] Mr Crowley referred you to photograph 3 in the Wellington video footage and said, and I quote him “to me he looks like a Pakeha. He did not mean to do something wrong but counsel cannot do that. They cannot give evidence. They can make a submission, and then it is up to you. You can look and decide for yourself, bearing in mind all witnesses said, well that man had dark skin. Counsel often do it, but what he really meant to say is well you can exclude that he is a Pakeha and he is clearly not.

[40] Mr Crowley said that this passage was wrongly critical of him as the point that he was endeavouring to make was the point which the Judge himself made, namely that the jury should look at the evidence and decide for themselves.
[41] There is nothing in this ground. The Judge considered that counsel had not expressed the point well and explained to the jury what counsel was attempting to say. It may be that other Judges would have dealt with the matter without suggesting that counsel had done something wrong, but the Judge expressed the point in a temperate way and did not dwell on it. It cannot sensibly be suggested that this gave rise to the risk of a miscarriage of justice.

Propensity evidence

[42] Ronald Young J dealt with a number of pre-trial applications: HC WN CRI 2006-085-7140 16 April 2008. One was that there be separate trials in relation to each robbery. The Judge said that “[t]he essence of this application is based on the proposition that propensity evidence relating to the two robberies [at the An Ying premises] is not admissible”: at [2](b).
[43] The Judge allowed the evidence and accordingly declined the application for severance. He said that he was satisfied that “as long as appropriate directions are given to the jury, limiting the way in which the propensity evidence can be used by them, the jury will not give disproportionate weight to the evidence of these other acts”: at [28].
[44] In his analysis, the Judge concluded that the probative value of the evidence was high: at [18]. In relation to its prejudicial effect, the Judge considered how the Crown proposed to use the evidence. In that connection, he referred to the “sequential” and “pool” approaches, explaining them by reference to the judgment of this Court in R v Gee [2001] 3 NZLR 729 at [9]–[11]: at [21].
[45] The Judge then noted that there were difficulties with both approaches in a case such as the present and said:

[22] The difficulty in using the pool approach here is that while the jury would be entitled to conclude the two robberies had at least one person in common, for the reasons I have given relating to the similarities between the two robberies, they may not be able to identify in particular whether one or other or both are involved. In those circumstances it may be wrong to invite the jury to “pool” the evidence of the two incidents when considering the case against either accused if they cannot say a particular accused must have been involved in both robberies.

...

[24] The sequential approach may also create difficulties. Even if the jury are satisfied an accused committed one of the robberies and they are satisfied that at least one person of the group who committed the two robberies is in common in both, that would not be evidence that a particular accused must have been involved in the other robbery.

[25] In R v Brown [1997] Crim LR 502 (followed in New Zealand in R v Tukuafu CA165/01 27 June 2001) the English Court of Appeal concluded that in circumstances where the issue is identification and there are alleged multiple offenders and, as here, the similar fact (or propensity) evidence is all internal to the indictment, such evidence may only be used where there is some evidence of an accused’s other involvement in the offending. The propensity evidence can then be used to bolster the Crown case on each count where there is such other evidence.

[26] In my view, this is the proper way in which the Crown is entitled to use the propensity evidence in this case. Here, there is other evidence on each count relating to each accused identifying them as one of the robbers. In some counts, the evidence is stronger than others that the accused committed the particular offence. In these circumstances, where there is evidence connecting both accused to both robberies, the propensity evidence which the Crown wishes to call can legitimately be used as circumstantial evidence supporting the Crown case (considering each individual accused separately) that each was a perpetrator of the particular robbery being considered. This approach will avoid the difficulty of the sequential approach identified in this judgment.

[46] Gendall J gave lengthy instructions to the jury on propensity evidence. Having reminded the jury that they should consider each charge separately, and solely in light of the evidence relevant to each, he went on to say:

[66] The exception to the general rule applies in the present case because first, identification of the [appellant] as the offender on each of the charge is before the Court as an issue, and indeed almost the sole issue.

[67] Secondly, both offences are said to have been committed in a characteristic way or have some features about them which are unusual.

[68] Thirdly, there is evidence that the [appellant] committed one or both offences in the same characteristic way, which had the same unusual features.

[69] If there are links or a pattern, either in acts of a person or in the circumstances of events, that show a tendency to act in particular way, and if you accept that such pattern exists as between the robberies in Auckland and Wellington, and the events relating to the charges fit within that pattern, then items of evidence about one event can be taken into account in relation to both charges. Provided however they come within a pattern, or similar modus operandi. If you reject any pattern, that is, that the offences were committed in a characteristic way or had some features unusual about them, then each charge is to be considered in isolation to the others.

[70] So, the Crown could call evidence, as it has, about both offences which may be used as the basis for the submission to you that the characteristics or features of the offences we are dealing with are so strongly similar that there is a logical conclusion that the same person or persons must be responsible for committing both of them. But before you are entitled to draw such a conclusion from the evidence, you have to be satisfied:

1. Firstly, that it was the [appellant] who was one of those persons who committed one offence which must be a prerequisite before you can use that evidence to determine that he committed both offences.
2. Secondly, that the offences show a particular common characteristic or feature or pattern.

100. Thirdly, that it is rational and logical to conclude that those similarities support the proposition that he was the same person who was involved in both aggravated robberies.

4. Lastly, having regard to all the evidence you have heard, you have to exclude that there remains at least a reasonable possibility that the robber was someone else.

[71] In this case, clearly the Crown are talking about the tall male robber of the two in Auckland, and the tall male robber of the three or four in Wellington.

[72] Of course here there are several offenders on both occasions (two on the first, and three or four on the second) as is apparent from the video footage. So you must be able to conclude that one of the same persons who committed both offences was the [appellant]. Where, as here, the issue is identification of one accused, and there are multiple offenders, and all the propensity evidence is said to relate to both charges, such evidence may only be used where there is some other evidence of the accused’s involvement in the offences. Do not be confused about that because you will understand that is simply common sense because whilst the perpetrators may have been the same, that could not lead without more to the conclusion that it was the [appellant] was one of them, unless there is evidence that links the [appellant] to being involved.

[73] Here there is evidence, depending on what you make of it, you might reject it, but there is evidence on each count relating to the [appellant] which may go towards – depending on the view you take of it – the identity of him as one of the robbers on both occasions.

[74] On some counts, the evidence may be stronger than on another that the [appellant] committed the particular offence. In such circumstances, where there is evidence connecting an [appellant] to both robberies, the propensity evidence (i.e. the similar pattern, the similar modus operandi of the two crimes) which the Crown has called can be circumstantial evidence supporting the Crown’s case that the [appellant] participated in the particular robbery that you are considering.

(Emphasis in original.)

[47] The Judge then dealt with the evidence pointing to the appellant being involved in both offences and the similarities in the offending, before summarising the position as follows:

[80] So to summarise on that, if you are sure that the same man was involved in committing both robberies, and secondly, find some other evidence linking the [appellant] to those events, and thirdly the events are a common similar pattern then you can take the evidence of Count 1 into account when considering the evidence on Count 2 and vice versa.

[48] Finally, the Judge said:

[125] Mr Crowley concluded that you are to use your common sense. That the evidence suggested, in his submission, that the robberies were linked but it was not the same man involved in both. But the same woman was, he said, Ms Williams, and that she was the common factor linked by all the evidence to both crimes. He invited you to find the [appellant] not guilty in respect of all four counts.

[49] Mr Crowley said that the defence case was that a person other than the appellant was the link between the two robberies, namely Ms Williams. He said that the Judge had not made this clear. He said that the Judge’s propensity direction was difficult to understand and switched from a sequential to a pooling approach.
[50] First, it was obviously important that the jury be reminded of the defence case that it was Ms Williams, not the appellant, who was the link between the robberies. Undoubtedly there were close similarities between the two robberies. While the evidence against the appellant in relation to the Auckland robbery was strong, Ms Williams had pleaded guilty to that offending. Consequently either (or both) could have been the connecting link to the Wellington robbery. Whether the sequential or the pooling approach was adopted, the problem remained the same, as Ronald Young J seems to have appreciated. There had to be evidence other than the similarities between the two robberies to link the appellant to the Wellington robbery. If there was such independent evidence, the propensity evidence could be called in aid at that point. But without that independent evidence, reliance on the propensity evidence would have been dangerous.
[51] The Judge was obviously alert to this difficulty. He instructed the jury that the propensity evidence should only be used where there was other evidence of the appellant’s involvement in the offences. Clearly there was such other evidence in relation to the Wellington robbery, for example the notebook.
[52] Second, the Judge did make it clear that the defence case was that the link between the robberies was not the appellant but Ms Williams (see [70](d) and [125], quoted at [46] and [48] above). While the Judge initially expressed the point a little obscurely, he expressed it clearly when he made it again, albeit at a late stage in a lengthy summing up. So the jury was reminded of the point.
[53] In the result, we consider that the Judge’s propensity direction was adequate, although it could have been expressed more clearly.

Overall assessment

[54] As we have said, the Judge misstated some of the height evidence, attributed a description (“gaunt cheeks”) to a witness who did not make it and wrongly identified the presence of white shoes worn by different perpetrators at the robberies as a material similarity. As explained above, we do not see any of these matters, taken individually, as raising the possibility of a miscarriage of justice. But do they in combination?
[55] We think not. The case against the appellant in relation to the Auckland robbery was overwhelming, as Mr Crowley seemed to accept. The jury’s rejection of the appellant’s far-fetched explanation for the presence of his palm prints on the counter is readily understandable. There was also strong evidence against the appellant in respect of the Wellington robbery. The evidence of the notebook was particularly powerful, and again it is readily understandable that the jury would have rejected the appellant’s version of events in relation to that. The combination of the independent evidence and the propensity evidence meant that the overall case against the appellant was very strong, and we consider that, even in combination, the misstatements in the summing up do not give rise to the possibility of a miscarriage of justice.

Decision

[56] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington