Taha v R [2015] NZCA 107 (30 March 2015)

Last Updated: 16 April 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA405/2014 [2015] NZCA 107
BETWEEN	PHILLIP WIKI TAHA Appellant
AND	THE QUEEN Respondent

Hearing:	11 February 2015
Court:	Cooper, Andrews and Gilbert JJ
Counsel:	P K Hamlin and E J Burton for Appellant S K Barr for Respondent
Judgment:	30 March 2015 at 12.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

[1] The appellant Phillip Taha was convicted on one count of aggravated robbery following his trial in the High Court at Auckland before Katz J and a jury.^[1] He now appeals against his conviction relying on four grounds of appeal.
[2] The grounds are:

• (a) Evidence has become available since the trial that the appellant did not participate in the robbery. Mr Tahere Hutchins, a co-defendant who pleaded guilty two weeks prior to the trial, has sworn an affidavit stating that he was present but the appellant was not.
• (b) There was insufficient evidence on which a reasonable jury could convict the appellant.
• (c) The Judge wrongly allowed propensity evidence to be admitted against the appellant in the form of a conviction for an earlier aggravated robbery.
• (d) There were deficiencies in the Judge’s summing-up.

Background

[3] The aggravated robbery occurred on 1 October 2012 at an ANZ bank branch in central Pukekohe.
[4] The Crown case at trial was that five men set out in a car from a house occupied by Sewa Taha, the appellant’s sister. They drove to a supermarket carpark separated from the bank by an alleyway. The driver was Justin Spencer who gave evidence for the Crown. Seated next to him in the front passenger seat was Harley Taha. Harley Taha pleaded guilty to a count of aggravated robbery and a count of being an accessory after the fact, although it was the Crown case that he was the organiser of the robbery.
[5] Once the car was parked, the three others entered the bank. One of them was said to be the appellant, carrying a shotgun which he used to threaten staff. The other two were Bobby Maxwell, who was also convicted at the trial and Mr Hutchins.
[6] The Crown case was that the appellant was the first of the robbers to enter the bank. He had been aware at least from the day before the robbery that his cousin, Harley Taha, was planning the robbery. It is not in dispute that at some time prior to the firearm used in the robbery being located by the police, the appellant had handled it. Further, on the morning of the robbery, at Harley Taha’s request, the appellant accompanied Mr Hutchins to an address where they thought there would be a stolen car.
[7] Mr Spencer did not know the appellant and was not able to identify him from a photograph board. However, he knew the person in question was Harley Taha’s cousin. The appellant is Harley Taha’s cousin. Mr Hutchins is also Harley Taha’s cousin, but Mr Spencer referred to Mr Hutchins as Harley’s “friend”.
[8] CCTV footage in the ANZ Bank indicated that the robbery occurred at 9.38 am. The appellant sent a text message to his girlfriend at 9.34 am. Thereafter, no text messages were sent from that cellphone until 12.27 pm. The appellant’s case was that he was asleep during this period and not communicating with his partner because she was at work.
[9] Harley Taha sent a text message to Mr Spencer at 11.40 am advising that his cousin had left his phone in Mr Spencer’s car. A text sent from Harley Taha’s phone at 11.58 am to the appellant’s friend, Jordan Dando, appeared to be from the appellant. The Crown relied on this and the gap in outgoing text messages from the appellant’s phone between 9.34 am and 12.27 pm as evidence that it was his phone that had been left in the car.
[10] The robber who held the gun wore a black top tied around his face. That top belonged to Sewa Taha. The top had the appellant’s DNA on it, as well as DNA from other persons unknown. The top was found discarded at a property in Victoria Street, several blocks away from the bank. Other clothing was found in the same location, which had been worn by the same robber. Clothing worn by Mr Maxwell was also found discarded in the vicinity. The shotgun was found under a house at the rear of another property in Victoria Street.
[11] A dog tracker, Constable Owen Davies, tracked a scent from an address further along Victoria Street to Sewa Taha’s address. The appellant and Harley Taha were found inside the address and spoken to by the police soon after 10 am. The appellant denied involvement and said that he had been at home all morning after completing a “mail run” at about 5 am.
[12] The Crown also relied on evidence the appellant had been at a shopping mall that afternoon, spending money. The defence case was that he had received $60 from his sister Sewa and money from his friend Jordan.
[13] Later that day, Harley Taha sent a text to the appellant informing him Mr Hutchins had been arrested.^[2] On the following day, Harley Taha asked him to locate the shotgun. The appellant responded that he thought the police were already in possession of the gun, saying Bobby Maxwell had stashed it (“u couldn’t ov seen it”) but that Bobby had “made tha [police] folow hm”,^[3] before agreeing to go and look for it. Harley Taha responded by telling him to have a look so we “no 4 our selfs”.
[14] In his police interview the appellant initially claimed he knew nothing about the robbery, and said he had not seen Mr Hutchins on that day. He had been just sitting at home because he had been bitten by a spider and needed to elevate his leg. However, when told about the text messages the police had obtained and that his DNA was on the shotgun and the black top, he eventually admitted he had seen Mr Hutchins that day. He said Mr Hutchins and he had been picked up by Harley Taha as they walked back to Sewa Taha’s house. Once there:

... they got some clothes and then they went back to go and do what they went to go and do and then they came back. I was supposed to be in it, but because I couldn’t walk, due to my spider bite

...

I stayed there, I stayed at my sister’s and that’s how when Harley came over, probably how the Police, probably b[r]ought the police with him.

[15] It will be necessary to refer to some of the evidence in more detail when dealing with the appellant’s contention that there was insufficient evidence for the jury to convict. However, before we do so, we turn to the argument based on new evidence, said to have become available since the trial.

Fresh evidence

[16] The appellant seeks to rely on an affidavit sworn by Mr Hutchins on 2 September 2014. In the affidavit, Mr Hutchins said that on the morning of the robbery he went with Harley Taha to the appellant’s sister’s house at 24 Kennelly Crescent in Pukekohe. The appellant was present but did not want to come with the others to do the robbery. Mr Hutchins claims: “We took some of his clothes to use as disguises in the robbery.”
[17] He continued:

13. When we left Phillip Taha’s sister’s place to do the ANZ robbery we picked up another person (a male) whom I did not know and still do not know his name. I was not told his name.
14. This other person was a bigger and an older man than Phillip Taha.
15. I was in the back of the car driven by Justin Spencer. Harley Taha was in the front passenger’s seat. I was in the back seat with Bobby Maxwell and this other man who I did not know. I understood that he was a friend of Bobby Maxwell’s.
16. This other man did not talk to me. He was aggressive and I did not like him. He was the one with the gun in the robbery. It was not Phillip Taha. We left Phillip Taha at his sister’s place because he did not want to come and Harley Taha could not convince him to help us.

[18] Mr Hutchins claimed to be “very surprised” to learn the appellant had been convicted and said he told his lawyer and the police prior to the sentencing that the appellant had not been involved in the robbery. Mr Hutchins also attached to his affidavit a letter he had written when he was sentenced for the aggravated robberies of both the Pukekohe and Waiuku Veterinary Centre and the bank. The sentencing took place on 10 July, at the same time as the appellant was sentenced in respect of the bank robbery. In the letter handed up at sentencing he said he was writing “to help an innocent person who has been found guilty of a crime he did not commit.” He said he was “shocked and disappointed” when he was told the appellant had been arrested, and that he told both his lawyer and the police that the appellant was not involved.
[19] In response, the Crown filed an affidavit by Detective Joseph Hunter, who was the officer in charge of the police investigation into a series of aggravated robberies including those at the veterinary centre and the ANZ bank. Detective Hunter said that written statements naming both Harley and Phillip Taha and Mr Hutchins as codefendants in respect of the bank robbery had been filed on 12 April 2013. He noted that following his guilty plea, Mr Hutchins had been convicted and remanded for sentence with his co-defendants who were due to go to trial on 28 April 2014. He said that he had never been contacted by Mr Hutchins or his then counsel, Ms Te Whata, with information that the appellant had not been involved in the bank robbery.
[20] Mr Hamlin accepted that in order for Mr Hutchins’ affidavit to be admitted it must be shown to contain evidence that is genuinely fresh, credible and cogent.^[4] He submitted that the evidence was fresh, because Mr Hutchins was not available to give evidence at the trial, having pleaded guilty 12 days before it commenced, and the appellant had been unaware of Mr Hutchins’ evidence. As to credibility, Mr Hamlin contended that the guilty pleas entered in respect of the two robberies with which he was charged showed he had accepted responsibility for his offending and, since he has been sentenced for both robberies, he has no reason now to make a false statement.
[21] Mr Hamlin also submitted that the evidence was cogent as it was an unequivocal detailed assertion from a person present at the robbery stating that the appellant was not there. He noted Mr Hutchins’ evidence that some of the appellant’s clothes had been taken by those involved for use in the robbery corroborated the appellant’s explanation as to how his DNA came to be found on clothing associated with the robbery. He submitted this evidence would have influenced the jury and assisted, with other evidence, to create a reasonable doubt.
[22] We do not accept Mr Hamlin’s submissions. As Mr Barr for the respondent pointed out, there is no explanation in the evidence as to why Mr Hutchins could not have given evidence as a defence witness at the trial. Mr Hamlin told us from the bar that, following Mr Hutchins’ guilty plea on 16 April 2014, he made inquiry of Mr Hutchins’ counsel, to be told that Mr Hutchins was not prepared to assist. However, that does not sit well alongside Mr Hutchins’ protestations to the Judge at sentencing that he had been shocked and disappointed when told of the appellant’s arrest. While Mr Hutchins would not have been a compellable witness prior to his sentencing,^[5] he would have been eligible to give evidence.^[6] There was nothing in his affidavit which suggests he would have been unwilling to do so. Further, the appellant would have known, if it were true, that Mr Hutchins would be in a position to say he was not present during the robbery, as one of those who had been present at Sewa Taha’s house when the appellant supposedly declined to participate. In the circumstances, we do not consider that the evidence can properly be described as “fresh”.
[23] We are also of the view that the evidence is not credible. Mr Hutchins made no reference in his affidavit to having accompanied the appellant to an address where they thought there would be a stolen car earlier that day. Further, Mr Hutchins claimed in his affidavit that he went with Harley Taha and the others to Sewa Taha’s house where the appellant was present. By contrast, the appellant said in his police interview that he and Mr Hutchins had been picked up by Harley Taha and then taken back to Sewa Taha’s house.
[24] Mr Hutchins’ claim that he was shocked and disappointed by the appellant’s arrest for the robbery was no doubt intended to support his further claim that he had told both his lawyer and the police the appellant was not involved in the robbery. Mr Hutchins’ assertion was vague as to the person he told and as to the timing. There was no evidence on this point from Ms Te Whata. Detective Hunter said he had not been told and we infer from his affidavit that he did not learn of Mr Hutchins’ claim from any other police officer. This is surprising if Mr Hutchins’ claim is correct.
[25] Other aspects of the affidavit give the appearance of having been particularly designed to counter particular aspects of the Crown’s case. In this category are the claim that the other robbers took from Sewa Taha’s place some of the appellant’s clothes to use as disguises in the robbery and the claim that the other person involved, whose name is unknown, was a “bigger and older man than Phillip Taha”. This also does not fit with eyewitness accounts from which (as will be seen) it may be inferred that Mr Maxwell was the older man and the other two involved were younger.
[26] We note also that in his affidavit Detective Hunter described lies told by Mr Hutchins when interviewed by the police in connection with the veterinary clinic robbery: among other things Mr Hutchins falsely accused a third party of involvement in that robbery.
[27] Taking all these considerations into account, we do not regard Mr Hutchins’ evidence as credible.
[28] This assessment of the credibility of the evidence inevitably affects our view of its cogency. Thus, while Mr Hutchins’ evidence would be highly relevant as a statement by one participant in the crime that another was not present, its lack of credibility means it cannot properly be characterised as “cogent”. This is not a case where there is a real risk that a miscarriage of justice has occurred due to the fact the evidence now proffered by Mr Hutchins was not before the jury.^[7]
[29] Consequently, we reject the ground of appeal based on new evidence.

Insufficient evidence

[30] Invoking s 385(1)(a) of the Crimes Act 1961, the appellant contends the verdict of the jury should be set aside because it is unreasonable or cannot be supported having regard to the evidence.
[31] In advancing this ground of appeal Mr Hamlin focused on five main issues. They were:

• (a) Lack of satisfactory identification evidence, particularly by Justin Spencer who did not identify the appellant in a photo board procedure.
• (b) The content and timing of text messages relied on by the Crown.
• (c) Incomplete DNA analysis.
• (d) The dog tracking evidence.
• (e) Implications of the appellant’s spider bite.

[32] Some other matters were mentioned in the written submissions, which we will also deal with briefly.

Identification evidence

[33] One of the grounds of appeal was that the driver of the car, Mr Spencer, did not identify the appellant in a photo board procedure. Mr Hamlin pointed out that on the Crown case, the appellant would have had to get into the vehicle Mr Spencer was driving and remain in the backseat of the vehicle when he drove the three offenders to the robbery. Mr Spencer gave evidence that he had picked up Harley Taha, Harley’s friend Bobby Maxwell, Harley’s cousin “and another friend” from Harley’s house in Helvetia Road, Pukekohe. He was able to identify Mr Hutchins and Bobby Maxwell from photo boards, but when shown a board containing a photograph of the appellant, he was unable to identify him.
[34] We do not consider this is a significant point. Mr Spencer’s evidence was of having picked up Harley, two friends of his and a cousin. It is clear from his evidence that Mr Hutchins and Bobby Maxwell were the friends. It was the cousin whom he was unable to identify. Mr Spencer knew Harley, and had previously met the “two friends”. Given that he had not met the appellant before, and the appellant was seated in the backseat during the course of a comparatively short drive, Mr Spencer’s failure to identify him from a photo board is perhaps unsurprising. In any event, the issue was before the jury and there was no reason to suppose they did not take into account Mr Spencer’s failure to identify the appellant. On the other hand, the jury would also have weighed the fact that Mr Spencer described the third robber in the backseat as Harley’s cousin.
[35] Mr Hamlin made another point about the identification evidence based on what was said by Michael Kravenko, an eyewitness, who described seeing three young people wearing balaclavas running down Edinburgh Street. He then drove to another street where he was able to see two of the three again, this time without the balaclavas. They were being chased by a supermarket employee. He described himself as “driving straight towards them” and he gave a description of a person whom he described as the “shorter guy” with a “wrinkled face” and as “quite oldish”. This person was wearing a “white chequered top”, which Mr Kravenko also referred to as a “white type thing”. He put his age as between “35 to 45”.
[36] Mr Kravenko did not see the face of the other person, whom he described as fitter and younger. He described him as having been wearing a brown top as he ran past. The Crown had CCTV footage of the robbers in the bank. It was the Crown case that the appellant, the robber with the gun, was wearing a black and white checked jacket.
[37] Mr Hamlin pointed out that Mr Kravenko’s description did not match the appellant. However, of the three robbers who allegedly entered the bank, the appellant was aged 20, Mr Hutchins 17, and Mr Maxwell 30. The jury may well have concluded that the person whose face Mr Kravenko saw and described was Mr Maxwell. It was the Crown case that one of the three robbers (Mr Hutchins) was separated from the other two as they ran from the bank. A witness Jason O’Reilly who gave chase described the robber who became separated as being in his mid-20s. Of the other two robbers, he described one as being aged early 30s and the other as younger. It would have been apparent to the jury, having seen Mr Maxwell and the appellant in the dock, that Mr Maxwell was older than the appellant.
[38] These were essentially issues for the jury. They would have been aware that only one of the robbers was wearing a black and white checked top (the Crown alleged Mr Maxwell was wearing a light grey coloured top with black arms) and that Mr Hutchins had been wearing a black top. None was wearing a brown top, which Mr Kravenko claims to have observed. We do not consider that any uncertainties surrounding Mr Kravenko’s description made the jury’s guilty verdict unreasonable or unsupportable on the evidence.

The content and timing of text messages

[39] The Crown relied on various text messages to and from the appellant as being consistent with his involvement in the robbery. They included a text sent by the appellant to Mr Hutchins on 30 September which read, “Yo mahi tomorrow yo.big jobb”.
[40] They also included exchanges on the morning of the robbery in relation to the address at which a stolen car was apparently available; the text from Harley Taha to Mr Spencer saying his cousin had left his phone in Mr Spencer’s car; the gap in text message traffic from the appellant’s phone between 9.34 am and 12.27 pm and subsequent exchanges establishing that the appellant went shopping later that afternoon; the message sent to the appellant by Harley Taha advising him of the arrest of Mr Hutchins; and the texts exchanged on the following day between the appellant and Harley Taha concerning the shotgun used in the robbery.
[41] Mr Hamlin referred to text messages exchanged earlier on 25 September between Harley Taha and the appellant in which the appellant declined to be involved in the robbery at the veterinary clinic and a further text in which, on 28 September, in response to Harley Taha telling him that he had got them an “earn”, he had said he was unable to walk because of his spider bite. Reference was also made to a text from Jamie Kingi, the appellant’s partner, asking the appellant how his leg was. The appellant told her he might stay in bed resting his leg.
[42] Mr Hamlin submitted that the texts should be considered against the background of defence evidence given by Sewa Taha that the appellant was trying to distance himself from Harley Taha and that, to the extent the texts indicated the appellant’s involvement in the offending, it was simply that the appellant was trying to “talk big” with his older and more powerful cousin and not appear weak.
[43] Once again, that evidence was there for the jury to consider and make of it what they could. As to the timing of the text messages, Mr Hamlin referred to differing evidence on the time at which the robbery was committed. CCTV footage from the bank recorded the robbery as having commenced at 9:38:01 and ending at 9:38:40. He contrasted this with timeframes of footage from the alleyway which the robbers traversed on their way to the bank from the supermarket carpark. This suggested that they went towards the bank at 9.30 am and returned two minutes later. The point of this contrast was that the appellant had sent a “romantic text message” to his girlfriend Ms Kingi at 9.34 am. In fact, the appellant and she exchanged several texts in which they expressed their love for each other and said they were missing each other. That exchange was finished by 9:35:14.
[44] There was evidence from which the jury could have concluded that the timing given on the CCTV footage from the ANZ bank was the most accurate record of when the robbery occurred. The ANZ security manager, Mr Christopher Booth, provided a brief of evidence which was read by consent. It was his evidence that the time recorded would be accurate within one or two seconds. He was plainly qualified to give that evidence and it was accepted by the defence. This point then effectively reduces to whether the appellant would have been engaged in an amorous exchange of texts approximately four minutes before the robbery commenced.
[45] Once again, that was plainly a matter for the jury. It was possible they would have concluded that the appellant communicated with his girlfriend at about that time as a basis on which he could later deny involvement in the robbery, at least to her. In that respect, it is relevant that, earlier in the day, Ms Kingi had sent him a text asking what he was going to do that day. He responded, at a time when he was out with Mr Hutchins looking for the stolen car, that he would be sleeping and resting his leg.

Incomplete DNA analysis

[46] Mr Hamlin submitted that there had been insufficient testing for DNA on relevant exhibits to “safely assume it was only the appellant’s DNA that was relevant to the robbery.” DNA was found on the woman’s top that, according to the Crown, was worn by the appellant in the bank. The DNA testing showed the appellant was “extremely likely” to be a “main contributor” and a female was also a major contributor. A mixed DNA profile was found on the shotgun. There were two contributors but the appellant was “extremely likely” to be the main contributor. There was one unidentified minor contributor. The Crown witness who tested the DNA samples, Mr Timothy Power, accepted that the appellant’s account given to the police of handling the gun at his sister’s house and replacing it in a bag prior to the robbery was a possible explanation for how the DNA came to be on the gun. However, Mr Power also said it was likely the gun had been held “all over the barrel and the stock” by the appellant.
[47] Mr Hamlin complained that the checked jacket alleged to have been worn by the appellant during the robbery was not submitted to ESR for DNA analysis. In addition, no effort was made to ascertain whether any of Harley Taha’s DNA was on any of the items.
[48] Once again, none of the points raised about the DNA analysis are persuasive. It was for the jury to make what they could of the available evidence. The DNA on the black top, so located as to be consistent with the shirt having been worn over the mouth as a disguise during the robbery, and the DNA on the shotgun supported the Crown’s case. The appellant’s explanation as to how the DNA would have got there was also before the jury. It was for the jury to decide the significance of the evidence and the fact they did not have further DNA evidence does not support a proposition that the verdict was unreasonable or unable to be supported.

The dog tracking evidence

[49] Constable Jeremy Steedman was one of the police officers who responded to the robbery. He saw a male person running across the road towards a property he identified as 41 Victoria Street. The male was wearing clothing which met the description he had received from a member of the public with whom he had spoken moments before. Having arrived outside number 41 (which he had seen the male enter) and being unable to see the male, he called for a dog handler and waited for him to arrive. As he waited, an occupant of the property told him she had seen a male person run down the rightof-way past her house.
[50] The dog handler, Constable Owen Davies, arrived and the two policemen went with the dog to the rear of the property at 41 Victoria Street, which was fenced. The dog indicated that the track went over the fence and Constable Davies put him over and then climbed over himself. They carried on to the left-hand side of the property they had entered, which was 24 Kennelly Crescent. Going past the side of the house, there was a person standing on the doorstep. Another person came out of the house and joined that person.
[51] Constable Steedman recognised them as Harley Taha and Phillip Taha. Having noted that the dog had tracked to this point, Constable Davies then continued to the front of that property to ascertain whether the person who had been tracked to that point had continued and left the address. Constable Davies explained the sequence of events as follows:

1. ... As we went past the side of the house there was a person standing on the I presume it’s the front doorstep. He was quickly followed, there was another person that came out of the house and joined him. Yeah. There was – the other officer was with me. He went and spoke to them while I carried on recasting Uka. So basically what happens is when we come to a person or something we move past them and then recast to see if the dog will pick up the scent, so the scent carries on, and if we can’t find the scent then the scent obviously stopped back where we were. From that position we couldn’t find any other scent or any other track.
17. Okay, so the position where you saw these two individuals, there was no scent or a t[r]ack away from them?
1. Leading on from that position, yes.

[52] This meant that the person who had been seen by Constable Steedman on Victoria Street was one of the two individuals standing at the door of 24 Kennelly Crescent. The dog could have indicated which one it was, but Constable Davies explained that doing so would have meant the person in question would have been bitten.
[53] Mr Hamlin contended that this evidence supported the appellant’s case that he had remained at the property, and the person tracked to the scene was Harley Taha. However, that was not necessarily the case. The jury may well have considered the person tracked was in fact the appellant because the person in question was clearly one of those who Mr Kravenko had seen running on Seddon Street and had then been observed by eyewitnesses crossing properties at 10 and 12 Victoria Street before being seen by Constable Steedman and followed to 41 Victoria Street. The jury could have taken that evidence into account together with that of Mr Spencer, who said he had dropped Harley Taha off at his place in Helvetia Road. If Mr Spencer’s evidence were accepted, then Harley Taha would have had to make his way to the Kennelly Crescent address by a roundabout route in order for his to be the trail picked up by the police dog in Victoria Street. There was, in the circumstances, ample evidence for the jury to conclude the trail picked up was in fact the appellant’s.

Implications of the appellant’s spider bite

[54] Mr Hamlin referred to the evidence of Constable Linda Watson. She spoke to the appellant at the Kennelly Crescent address on 1 October, and said she had noticed he had a “wound” on his leg that he said was the result of a spider bite. When he walked away after speaking to the constable, she observed that he appeared to be limping. She thought the wound looked as if it was infected and observed that it would probably be painful if that was the case.
[55] Sewa Taha also gave evidence about the spider bite. There were text message exchanges between the appellant and his girlfriend about it, and a text message sent by the appellant to Harley Taha on 28 September saying at that stage that he could not walk because of it.
[56] Mr Hamlin submitted the evidence about the spider bite raised a doubt as to whether he would be capable of running away from the robbery as described. He submitted it might support his explanation that he was asleep at the time of the robbery, while his girlfriend was at work.
[57] Once again, it was a matter for the jury to assess the implications of the spider bite. In addition to the evidence on which the appellant relied, there was the evidence that he had been out on the morning of the robbery looking for the car with Mr Hutchins and that later on the same day he was out shopping.
[58] Once again, we are not persuaded that anything in this point suggests that the jury’s verdict was unreasonable or cannot be supported having regard to the evidence.

Other matters

[59] Mr Hamlin referred also to the appellant’s statement to the police, his account of having argued with Harley Taha and refusing to do the robbery, and the fact that there was a person present in the car whose name he did not know. Mr Hamlin also referred to Sewa Taha’s evidence that the appellant had been at the Kennelly Crescent address babysitting her children at the time of the robbery. Finally, there was evidence from Gregory Barrett, called by the defence, who said he had employed the appellant for five weeks over a two or threemonth period. Mr Barrett commented on the appellant’s changed attitude following an earlier period in prison.
[60] All of this evidence was before the jury and what they made of it was a matter for them. None of these other matters leads to a conclusion that their verdict was unreasonable or unable to be supported.
[61] Consequently, this ground of appeal must fail.

Propensity evidence

[62] The third ground of appeal is that the Judge wrongly allowed propensity evidence to be admitted.
[63] On 2 June 2011 the appellant was sentenced to two years’ imprisonment, having pleaded guilty to an aggravated robbery committed on 13 September 2010 at the Liquorland store situated on Seddon Street, Pukekohe. He entered the store at 6.30 pm, carrying a knife with a blade measuring approximately 20 centimetres in length. He was not wearing a disguise. He approached two shop workers who were in the vicinity of the serving counter and office, threatening them both with the knife. He pointed the knife at one of the victims telling him not to do anything stupid and grabbed several packets of cigarettes from the display behind the counter. He then went to the front of the counter and removed three or four handfuls of cash totalling $600 from the open till. He returned to the back of the counter where another victim was standing and pointed the knife at him, warning him not to follow or he would be punched. He took two bottles of whisky from behind the counter before running from the shop.
[64] The Crown applied under s 344A of the Crimes Act and Venning J ordered that the evidence was admissible at the trial.^[8] He held that the evidence of the previous conviction for aggravated robbery and the summary of facts relating to it had probative value in relation to the issue in dispute, namely whether the appellant was involved in the robbery.^[9] He considered the probative value of the evidence was particularly strong and outweighed the risk of any unfairly prejudicial effect on the appellant.^[10]
[65] The issue was raised again at the conclusion of the second week of the trial. It was contended then that the Crown case, as it had emerged during the trial, was weaker than it may have appeared to Venning J. As a consequence, counsel submitted that admission of the propensity evidence was now “potentially more prejudicial”. Katz J disagreed and thought nothing that had occurred during the course of the trial altered the proper analysis. Mr Taha’s explanation for his DNA being on the clothing had not changed; the propensity evidence remained relevant to the assessment of the credibility of that explanation. She considered that any risk of it having an unfairly prejudicial effect could be addressed by way of an appropriate jury direction.^[11] She held the evidence was admissible.
[66] Mr Hamlin argues in this Court that the probative value of the evidence is not high, claiming the previous conviction did not support with sufficient specificity a propensity to carry out an organised and sophisticated bank robbery. He argued that the centrality of the evidence of the prior conviction would have had an unfairly prejudicial effect because it may have become the central deciding factor regarding the identity of the third robber and disproportionately influenced the jury. Mr Hamlin submitted the prior conviction gave plausibility to and unfairly bolstered the Crown’s case. In the result, the evidence would have had a highly prejudicial effect on the reasoning of the jury.
[67] Mr Hamlin relied on King v R where it was alleged the defendant had robbed a jewellery store in Hamilton in 2012 and the Crown sought to rely on evidence of two previous convictions, the first for the aggravated robbery of a dairy in Hamilton and the second the aggravated robbery of a bank in Kaitaia, both in 2008.^[12] This Court accepted evidence of those two offences was relevant as propensity evidence, showing the defendant had, on two occasions four years earlier, carried out a robbery of commercial premises and obtaining cash by threats. The evidence suggested King had a tendency to rob commercial premises for money and that was relevant given that identification was the key issue in dispute.^[13] However, the Court concluded:

• (a) There was a modest connection in time between the earlier and later events, which were some four years apart.^[14]
• (b) While there were some broad areas of similarity between the offending including the use of a threat, use of disguises and seeking money after entering commercial premises, those features are present “in many robberies”.^[15]
• (c) There were dissimilarities between the facts of each of the cases and the latest offending could be distinguished from the earlier cases in that there was no use of a note to demand money or use of a gun to threaten the victim.^[16]

[68] Accordingly, the Court concluded the probative value of the two prior offences was not strong. The Court then expressed the view that the evidence of the previous convictions could well be central to a jury deciding on Mr King’s guilt beyond reasonable doubt, and there was a risk the jury would give the evidence a weight disproportionate to its probative value.^[17]
[69] The facts here are different. Here the Crown’s case was in our view relatively strong without the propensity evidence. As has already been discussed, the Crown’s evidence established the appellant was aware of the proposed robbery, and had been out looking for a stolen car with Mr Hutchins on the day of the robbery; his DNA was on the clothing used in the course of the robbery; and his fingerprints were on the firearm used in the robbery. In these circumstances, we do not accept that the jury would have given the propensity evidence undue weight.
[70] In addition, although the appellant had been armed with a knife in respect to the previous offending and allegedly used a sawnoff shotgun in the present case, that is not a significant distinction for present purposes. Nor are the facts that the previous occasion involved him acting on his own to rob a liquor store, or that the second offence was the alleged robbery of a bank carried out with others. In R v King, the fact that different kinds of commercial premises were involved was not mentioned as a significant dissimilarity and we do not think it is in this case either.
[71] We note further that there was a reasonably close connection in time between the earlier and the later alleged offending. The earlier offending occurred approximately two years before the present offending and the appellant had spent part of the intervening period in prison. Further, both incidents occurred in the Pukekohe area and both involved threats of violence backed up by a weapon. Contrary to Mr Hamlin’s submission we would not characterise the robbery as “sophisticated”.
[72] In our view, the evidence was properly admitted and this ground of appeal also fails.

The summing-up

[73] Two issues are pursued in respect of the trial Judge’s summing-up. It is said she failed to summarise the defence case adequately and, in particular misdirected the jury in relation to the DNA evidence and the evidence of the dog handler.
[74] We deal with each in turn.

The DNA misdirection

[75] The appellant complains that the trial Judge failed to put adequately to the jury the significance of the mixed DNA profiles, and the presence of multiple unidentified contributors on the gun and clothing linked to the appellant. In her summary of the Crown’s case, the Judge referred to the DNA found on various items. In relation to the defence case, she said:

[59] Mr Hamlin did not challenge the ESR evidence or dispute that Mr Taha’s DNA was on the gun or items of clothing that were recovered. DNA evidence cannot, however, prove whether Mr Taha was in the bank that day. It simply shows that at some time, and we do not know when, he either handled or was in close contact with some of the items recovered by the police.

[60] Mr Hamlin noted that the ESR reported a mixed DNA profile, which indicated that there was at least one other person’s DNA on the gun and two other people’s DNA on the clothing. He submitted that the DNA evidence was therefore entirely consistent with the version of events Mr Taha gave to the police in January 2013, which was that Harley Taha had dropped by his house on the way to the robbery and tried to persuade him to join in with their plans. Phillip Taha had declined to do so, but had handled the shotgun during Harley's visit.

[61] In addition, Harley Taha or others with him could well have taken clothing from the house when they dropped by, as Harley had done on previous occasions. You will recall Sewa Taha’s evidence regarding that. She said that the household took a communal attitude to sharing clothing and it was not unusual for Harley, or others, to borrow or take clothing.

[62] Taking these matters into account Mr Hamlin submitted that the contributors to the unidentified DNA on the items could well have been the real bank robbers. He suggested that the other DNA contributors could possibly have been Harley Taha, Tahere Hutchins or even Justin Spencer. I have already noted the proposition was not put to Justin Spencer.^[[18]] So that is a matter you will need to keep in mind.

[63] Mr Hamlin also submitted that the offenders could have picked up Sewa Tawa’s top and when they went to 24 Kennelly Crescent on the morning of the robbery and that that supports Phillip Taha’s statement that they went to his house, rather than that he went to Harley Taha’s house that morning. Mr Hamlin also submitted that Phillip Taha’s DNA could well be on Sewa Taha’s top as a result of secondary transfer, given that Sewa Taha is his sister.

[76] The complaint made is that the Judge failed to point out the significance of the police failure to compare the minor contributors with the reference samples for Mr Hutchins or Bobby Maxwell or to submit a reference sample for Harley Taha against which a comparison could have been made. Mr Hamlin argued the Judge ought to have highlighted the implications of the mixed DNA results because the DNA result was inconclusive and therefore misleading; there was a risk the existence of the appellant’s DNA on the various items would have a disproportionately strong impact on the jury.
[77] We do not accept the appellant’s contentions. The Judge was not in a position to address the significance of the mixed DNA profiles beyond noting the arguments advanced by the defence, which we consider she did adequately. The only real significance of the mixed results was that the DNA of persons unknown was on the items in question in addition to that of the appellant. The jury would have been well aware of that and the support thereby leant to the defence case that the appellant was not present during the robbery. We reject this ground of appeal.

The dog handler misdirection

[78] Mr Hamlin submitted the Judge misdirected the jury by “mischaracterising” the dog handler’s evidence and wrongly cautioning the jury against accepting a defence submission that it was not possible to say which of the two men present at 24 Kennelly Crescent when the police arrived had been tracked by the dog and that if Harley Taha had recently arrived at the address as he claimed, the dog would have picked up his scent at the front of the property.
[79] The relevant part of the summing-up was as follows:

[76] I now turn to dog tracking. Mr Hamlin noted that when the police arrived there were two men at the property, Harley and Phillip, and it was not possible to say which one of them the dog may have tracked. Mr Hamlin suggested that if Harley Taha had only recently arrived at 24 Kennelly Crescent, from the Kennelly Crescent side of the property, rather than over the fence from 41 Victoria Street, the dog would have picked up his scent when it was recast and then followed that new scent.

[77] I suggest that you treat this particular submission with some caution. It was not put to the dog handler, Constable Davies, whether his dog, if it had followed one scent to the property, is trained to pick up a fresh, but different, scent leaving the property and then follow that. Nor was Constable Davies asked whether his dog is trained to, in effect, follow a scent in reverse. In other words, rather than following a scent to its source in order to find a person, might a tracking dog effectively start with a person and follow their scent away from them. Of course, such things may well be possible. But Constable Davies was not cross-examined on them.

[78] When considering the proposition that if Harley Taha had recently arrived at the property from the Kennelly Crescent side the dog would have picked that up, you will need to consider whether Constable Davies’ evidence, viewed as a whole, supports such a proposition. You cannot speculate, but need to reach any conclusions based on the evidence before you. You will also need to take into account, however, that the proposition that the behaviour of the tracking dog was inconsistent with Harley Taha having recently arrived at the property from the Kennelly Street side, was not put to Constable Davies for comment.

[80] As can be seen the defence proposition was that the dog would have picked up any fresh scent at the front of the property, and Constable Davies had given evidence that he cast the dog around the front of the property, going on to the road at the frontage. Mr Hamlin submitted Constable Davies accepted that no fresh scent had been picked up as a result. Since only one scent had been tracked to the property the scent tracked by the dog over the back fence must have been that of Harley Taha. This supported the appellant’s contention that he had been at home during the robbery. Mr Hamlin claimed the Judge “misdirected that the dog could not track backwards, when the evidence was that dog simply tracks the freshest scent (backwards or forwards)”. It was inappropriate for her to have cautioned against accepting the defence submissions on this point since it was supported by the evidence.
[81] Once again we do not accept that the Judge erred. We have already quoted part of the evidence in chief of Constable Davies in dealing with the similar issue raised in the context of the first ground of appeal.^[19] For present purposes it is relevant to refer in addition to relevant passages of Mr Hamlin’s cross-examination of the Constable on this issue:

Q. Now, that’s when you continued casting Uka was it?

A. Uka yeah.

17. Towards past the door where you saw the two males, towards the front of the section?
1. Yeah, so, when the dog sees someone that he is interested in, he will focus on them so to get him back concentrating on what we want, which is putting his nose on the ground to follow, following the track, if there is another track we move him forward, so it’s a case of bringing him back into me, walking past them and recasting him. If we’re by ourselves we stop and talk to the people and find out what’s happening, but because there was not an officer me we can leave that to him and I can just carry on doing what I’m supposed to be doing, if that makes any sense.
17. Right so you left the talking, as it were, to Officer Steedman, who we understand was with you and you carried on to see if you could find any other fresh track beyond the doorway, is that what you’re saying?

A. Yes.

Q. So the track more or less came up to the place by the doorway?

A. Um...

Q. Could you say or couldn’t be sure.

1. There’s not a lot of room so it’s just come round there and the males are there so instantly on reeling the dog in so we don’t have any mishaps, as you can understand.

Q. He’s trained to secure his find?

A. If he needs to.

Q. Yes, right, in this case he clearly didn’t need to?

A. No.

...

17. So there’s two males there, the other police officer goes to talk to them?

A. Yes.

17. And you’re looking to see if the track goes further, was in fact going further?

A. Yes.

17. And so your job is to go beyond that doorway, further out towards the roadway, Kennelly Crescent?

A. Yes.

Q. Tell us what you do then?

1. Ah, from there I just proceeded to cast around the front of the property, to see if we could find anything else, moving down the footpath, both directions, um, just to see if we can pick up another track, which none were located.
17. So you went right round onto the front lawn that we see there where the number 24 is imposed?

A. Yes.

17. Across, backwards and forwards the across the front there to see whether there’s any tracks?

A. Yes.

Q. And then up onto the footpath, onto the road?

A. Yes.

Q. Left and right?

A. Yes.

[82] And a little later there was this exchange:

Q. Both ways, left and right?

A. Yes.

Q. And the result of that was nothing?

A. No, nothing.

Q. No fresh track?

A. No.

17. So then there’s nothing to indicate any fresh scent beyond about the doorway where the arrow is on 24?

A. No.

[83] We are satisfied from the evidence that the Constable’s purpose in casting the dog around the front of the property at 24 Kennelly Crescent was to see whether the track followed to the property would continue past the appellant and Harley Taha to the front of it and beyond, which would indicate that the relevant person had left the property. If not, then, as the Constable said in his evidence in chief, that meant the scent had stopped back at the house. The Judge was correct when she noted to the jury the possibility that, once he was following a scent the dog might pick up a new, fresher scent and start following that, had not been put to the Constable. We consider there was nothing inaccurate or inappropriate in her directions to the jury on this issue.

Result

[84] None of the grounds of appeal has succeeded and the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Taha HC Auckland CRI-2013-057-747, 15 May 2014.

^[2] Mr Hutchins had been arrested in respect of an aggravated robbery committed by him at the Pukekohe and Waiuku Veterinary Centre on 25 September 2012, in which the appellant was not involved.

^[3] Counsel for the appellant suggested these words used in the text meant that Mr Maxwell had led the police to the gun.

^[4] Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 and R v Bain [2003] NZCA 294; [2004] 1 NZLR 638 (CA).

^[5] Evidence Act 2006, s 73.

^[6] Evidence Act, s 71.

^[7] Fairburn v R, above n 4, at [35]; Witehira v R [2011] NZCA 255 at [39].

^[8] R v Taha [2013] NZHC 2939.

^[9] At [15].

^[10] At [18].

^[11] R v Taha HC Auckland CIV-2013-057-747, 19 May 2014 at [24]

^[12] King v R [2013] NZCA 649.

^[13] At [12].

^[14] At [15].

^[15] At [16].

^[16] At [17].

^[17] At [20]–[21].

^[18] Mr Hamlin noted that the appellant did not contend Justin Spencer’s DNA could have been on the relevant exhibits. We do not consider anything turns on this.

^[19] At [51].