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Preston v R [2016] NZCA 568; [2017] 2 NZLR 358 (1 December 2016)

Last Updated: 2 February 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
23 August 2016
Court:
Kós P, Winkelmann and Brown JJ
Counsel:
S J Gill and L M Sziranyi for Appellant A Markham for Respondent
Judgment:


JUDGMENT OF THE COURT


The appeals against conviction and sentence are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Table of Contents

Para No
Events leading up to the murder of Ms Fan [2]
The Crown case against Mr Preston [11]
First ground of appeal: Admission of appellant’s statements
in the form of Facebook postings and texts to adult daughters [17]
The text messages to appellant’s adult daughters [17]
Discussion [23]
Facebook “pro job” message [28]
Second ground of appeal: Admissibility of evidence of victim’s
statements to third parties [33]
Relevant principles under the Evidence Act 2006 [37]
Admissibility of victims’ statements under the law prior to the
Evidence Act [44]
The Liu decision [59]
Admissibility in this case [68]
Third ground of appeal: Admissibility of statements made to
pastor [82]
Background [82]
High Court judgment [86]
Relevant legal principles [88]
Discussion [91]
Fourth ground of appeal: Trial Judge’s failure to put defence case
properly [95]
The gloves and the palm print [99]
DNA evidence [112]
Analysis [115]
Fifth ground of appeal: Prosecutorial misconduct [118]
Relevant principles [119]
Inflammatory comments [124]
Inviting speculation [133]
Witch’s hat [135]
Discussion [137]
Ms Fan’s “lie” about “hitman” [145]
The killer had staged a burglary [146]
That the nature of the attack on Ms Fan meant that it was a
“personal killing” [147]
That the attack had taken place over about five to fifteen minutes [149]
That the socks found by Ms Fan’s body had been taken to the
address by Mr Preston as part of the change of clothes [151]
Summary on appeal against conviction [155]
Sentence appeal [156]
Result [169]

[1] Mr Preston was convicted of the murder of his former partner, Rongmei (Mei) Fan, following a jury trial before Williams J in the High Court at Wellington.[1] He was sentenced by Williams J to life imprisonment with a minimum period of imprisonment of 19 years.[2] He appeals his convictions on a variety of grounds contending that a miscarriage of justice has arisen because errors were made in admitting certain material as evidence, because of prosecuting counsel’s conduct and, finally, because of deficiencies in the summing-up. Mr Preston also appeals against sentence on the sole ground that the minimum period of imprisonment imposed by Williams J was too high.

Events leading up to the murder of Ms Fan

[2] The narrative of events that emerged in evidence before the jury is as follows. Mr Preston met and married Ms Fan in China. The couple initially lived in China and had two children — a daughter born in 2004 and a son in 2006. In 2010 Mr Preston took the children to New Zealand, ostensibly to visit his sick mother, but as he had planned he did not return to China. Ms Fan tried to travel to New Zealand to be with her children but initially Mr Preston did not support her visa application. He eventually relented and she arrived in New Zealand in 2011, reuniting the family. The relationship soon broke down and about a year after she arrived in New Zealand, in October 2012, Ms Fan moved out of the family home and into a women’s refuge shelter. She obtained a temporary protection order allowing for weekabout custody of the children. Mr Preston breached this initial order on several occasions.
[3] During the course of their separation a dispute arose over custody of the children and Mr Preston began a campaign against Ms Fan, writing to agencies for the purpose of having her deported. When in April 2013 Ms Fan moved to a rental property, Mr Preston wrote to Housing New Zealand to try and get her evicted. He also became preoccupied with jealousy about Ms Fan’s new partner, Mr Hoyhtya.
[4] In May 2013 the temporary protection order was discharged because Ms Fan had initiated some contact with Mr Preston. But subsequently, in July 2013, Mr Preston was trespassed from Ms Fan’s home. The trespass order was discharged in August 2013 when Ms Fan became concerned for Mr Preston’s mental health and they reconciled, but for a very short period as Ms Fan again left Mr Preston when his behaviour deteriorated.
[5] In September 2013 Mr Preston complained to the police and to Child Youth and Family Services that Ms Fan was hitting the children, an allegation that was not substantiated. Child Youth and Family Services had previously recorded concerns about the “unhealthy” conversations Mr Preston seemed to be having with his children and with his fixation on trying to discredit Ms Fan as a wife and mother.
[6] Ms Fan expressed fears for her safety to the police and said that Mr Preston was so crazy she was worried he might kill her. A renewed trespass order was made on 8 October 2013. On 17 October 2013 Mr Preston told a friend that “me and the kids will be together forever soon”.
[7] It was also in October 2013 that Ms Fan bought a car and began driving lessons. Mr Preston complained to the police that she had used fake identification to obtain the licence. Texts and social media from around this time reveal Mr Preston’s suspicion that Ms Fan was in a sexual relationship with two male friends. A friend described Mr Preston as tearful and frustrated with his personal situation, and as saying he could not take it anymore.
[8] On 5 November 2013 Ms Fan sent Mr Preston a series of text messages, which formed a narrative in which she told him she was sick of his behaviour and manipulation and wanted nothing more to do with him. Mr Preston’s response was to go on to Ms Fan’s property, in breach of the trespass order, to confront her. Ms Fan called police because Mr Preston was on her property, verbally abusing her.
[9] The following day, 6 November 2013, Ms Fan applied for a further protection order which was granted. It was served on Mr Preston on the evening of Thursday 7 November 2013.
[10] Ms Fan was last seen alive at around 9 am on Friday 8 November when she dropped her children to school. Her body was found on Sunday 10 November lying just inside an entrance door to her home. She had suffered 38 stab wounds to her face, neck and upper extremities. Some of the wounds went right through her neck and the knife used in the attack was left in one of these wounds with its tip protruding. The evidence suggested Ms Fan had died in the time between dropping her children off at school and 2 pm on Friday 8 November.

The Crown case against Mr Preston

[11] Mr Preston was interviewed by police on the evening of 10 November and then again on 11 November. Mr Preston’s conduct during these interviews was part of the Crown case against him. The Crown case was that the grief he displayed was histrionic. It also pointed to lies and inconsistencies in the initial accounts Mr Preston gave police about his activities on 8 November.
[12] The Crown relied on forensic evidence. DNA found on the handle of the murder weapon was said to come either from Mr Preston or his son. DNA accepted to come from Ms Fan was found in one of two small blood stains on the driver’s side of the console of Mr Preston’s car. The Crown case was that gloves were worn during the attack on Ms Fan. A palm print found in Mr Preston’s car was identified as his. It was formed in a powdery substance and expert evidence linked that powder to the kind of powder found inside disposable gloves. There was evidence linking acrylic hair found at the scene to a fibre found in a commonly-sold witch’s hat and evidence that the children had previously had such a hat at Mr Preston’s house, a hat which now could not be located.
[13] A balled-up pair of men’s socks was found next to Ms Fan’s body and it was the Crown case that this together with other evidence suggested that the murderer had cleaned himself up after the attack on Ms Fan and changed clothing. The Crown said the socks were Mr Preston’s.
[14] The Crown pointed to what it said was suspicious behaviour by Mr Preston following Ms Fan’s death. He extensively cleaned his house over the subsequent weekend and told his daughter, A, this was because a landlord’s inspection was imminent. That was not true. He also showered and changed on his return from an appointment on the day of the attack on Ms Fan, which was not in accordance with his usual routines according to his own account.
[15] There was extensive evidence of the state of the relationship, some of which came from statements made by Ms Fan in affidavits sworn by her, in text messages she sent and conversations she had with friends before her death. The Crown also produced evidence of statements made by Mr Preston after Ms Fan’s death in text messages, on social media and in conversation with others. In one of these statements he revealed knowledge of the murder scene which the police had not made public.
[16] The Crown case was then a very circumstantial one. The defence case was that Mr Preston was not the killer — there were others who might have wanted Ms Fan dead — and that there was an answer to all the circumstantial strands the Crown sought to draw together. For example, the defence attempted to fix Ms Fan’s time of death at shortly after the school drop-off. If she died around that time, then sightings of Mr Preston later that day in the neighbourhood did not have the significance the Crown sought to attach to them.

First ground of appeal: Admission of appellant’s statements in the form of Facebook postings and texts to adult daughters

The text messages to appellant’s adult daughters

[17] The relevant text messages were sent by Mr Preston to his adult daughters on 18 December 2013, 27 December 2013 and 28 February 2014. At the time that he sent these texts the two children of his relationship with Ms Fan were in the custody of his sister, Kathryn Preston.
[18] Objection was taken pre-trial to the admissibility of the three text messages. Williams J ruled that they were admissible.[3] The texts read as follows:

Text 1: on 18 December 2013 at 12.46 pm Mr Preston sent the following two texts to daughter AP in quick succession:

If Kathryn thinks I might have killed Mei over losing my kids then she needs to reconsider how much stress she’s got me under at the mom and how long b4 I

... really do snap.

Text 2: on 27 December 2013 at 12.41 pm Mr Preston sent the following text to his daughter GP:

Don’t want 2 listen 2 [AP] talk about Kathryn and hnw gr8 she is. I rather go back to NZ and plot my sister’s death.

Text 3: on 28 February 2014 at 11.54 am and 12.45 pm respectively, Mr Preston sent the following two texts to his daughter TP:

2 yrs is 2 much. I’m not prepared 2 let her hav my kids that long. She’ll pay dearly 4 this

Do you really think the cops want more bodies on their hands.

[19] Before Williams J the Crown argued that the texts were indirect admissions by Mr Preston, implicitly confirming that he had plotted another’s death before and had produced “bodies” previously. In the alternative, Williams J dealt with it as an application to admit propensity evidence — the propensity to harbour homicidal intentions toward a person close to him, whom he considers responsible for loss of custody of the children.
[20] The Judge rejected the notion that the texts were to be read as admissions, even impliedly.[4] However, he was satisfied that they should be admitted as propensity evidence because they could properly be construed as evidence of a propensity of the nature articulated by the Crown.[5]
[21] The Judge also said that any prejudice to the defence arose from the meaning of the words and so was not unfair.[6] The Judge did, however, order that part of the first text — “If Kathryn thinks I might have killed Mei over losing my kids then ...” — should be edited out because of its prejudicial effect.[7]
[22] On appeal, Mr Gill says the Judge was wrong to admit into evidence the text we have labelled Text 2 and the first of the two texts sent to TP on 28 February 2014. It is argued that the prejudicial effect of this evidence outweighed its probative value. Mr Gill argued that the evidence had limited probative value but would assume disproportionate focus in the minds of the jury.

Discussion

[23] We agree with the Judge’s assessment that the evidence was plainly admissible. We address the three text messages in their entirety, rather than limiting our consideration to the two that Mr Gill has identified on appeal, because it was the three text messages together which the Crown said established propensity.
[24] Although remarks such as these made on a single occasion might be dismissed as jocular or foolish bluster, these messages were sent over quite a period of time. The persistence and consistency of the message communicated by Mr Preston takes these messages outside the realm of mere braggadocio. We consider the three text messages, each threatening in its own way and taking place within days or weeks of Ms Fan’s death, do establish a propensity on the part of Mr Preston to harbour homicidal thoughts in connection with those who are close to him but who keep him from his children. Such a propensity was relevant as, on the Crown case, Mr Preston decided to kill Ms Fan when he believed her actions had deprived him of the custody of their children.
[25] The evidence is of course highly reliable and we agree with the Judge’s assessment that the prejudicial effect of the evidence was largely coterminous with its relevance.[8]
[26] The use to which the evidence was put at trial emerges from the Crown closing. Mr Burston for the Crown put the matter as follows:

The Crown says that the propensity evidence is one piece of evidence you can consider in your deliberations. You need to treat propensity evidence carefully. ... Nor can you reason that just because Mr Preston has expressed homicidal thoughts about his sister when she had custody of his children, if that is what you consider that they are expressions of, that therefore he must have had homicidal thoughts about Ms Fan and killed her. That’s not the proper way that you can use propensity evidence and His Honour will tell you about that.

However, you can use the propensity evidence as simply one circumstantial strand when considering whether Mr Preston killed Ms Fan. If you accept that Mr Preston has a tendency to act and think in this way, does it make it more likely that he was the person who killed her with a knife, when he became very angry that she had denied him custody of his children.

[27] The Crown therefore presented it as just one strand of evidence. Our review of the Crown closing and the evidence satisfies us that, in the overall context of the volume of material that was available against Mr Preston in the form of his own utterances,[9] this evidence would not have assumed great prominence in the minds of the jury. We also record that the appellant did not criticise the Judge’s direction to the jury as to the relevance and use of this evidence.

Facebook “pro job” message

[28] After the murder, one of Mr Preston’s friends messaged him on Facebook: “have they found anyone in relation to what happened man”. On 21 December 2013 Mr Preston replied: “they have got several ounces of nothing. It was a pro job ;-)”.
[29] The Crown closed on the basis that “These are all matters for you but the only person who would have been happy the police had ‘several ounces of nothing’, I suggest, was the killer.”
[30] When summing up the Judge said:

Then there is the “it’s a pro job” Facebook post followed by a smiley winky face. The Crown says that’s a comment likely to be made by the killer. The defence says, not so. It is exactly the sort of dumb humour Mr Preston has always engaged in. Once again, analyse and assess, but don’t speculate.

[31] On appeal, Mr Gill submits that this evidence has no relevance at all in the trial because it had no tendency to prove or disprove anything of consequence to the determination of the proceeding. However, it was very prejudicial because it supported the submission made in closing by the prosecutor and it was of a nature that would be given disproportionate weight by the jury.
[32] In our view the evidence was plainly admissible. It was highly probative in that it showed Mr Preston was apparently expressing satisfaction in the police’s failure to progress their investigation into Ms Fan’s death. There is nothing unfair in the Crown prosecutor’s submission to the jury based upon it. Again, as with the earlier evidence, its prejudicial effect was entirely legitimate; it was the same as its probative value.

Second ground of appeal: Admissibility of evidence of victim’s statements to third parties

[33] The challenged evidence under this ground is as follows:
[34] Mr Preston challenged the admissibility of Ms Teo’s and Mr Hoyhtya’s evidence in (c) and (d) above pre-trial. Williams J was satisfied that the evidence was reliable and should be admitted.[10] No objection was taken to the admissibility of (a) and (b).
[35] In this Court Mr Preston contends that all of these statements were wrongly admitted. He says the statements were hearsay and unreliable. Therefore, they were inadmissible. He further says the risk that the evidence would have had an unfairly prejudicial effect on Mr Preston’s trial outweighed its probative value. Mr Gill calls in aid of his argument the refusal to admit similar evidence in R v Liu.[11] He also points to an earlier pre-trial appeal in this case in which similar evidence was ruled inadmissible.[12]
[36] The Crown says that the statements were properly admitted. It further urges this Court to conclude that Liu was wrongly decided and to undertake a broader inquiry as to when statements such as these will be admissible as evidence.

Relevant principles under the Evidence Act 2006

[37] We begin with the principles governing the admissibility of hearsay evidence under the Evidence Act 2006. As we come to, we accept Mr Gill’s argument that these statements of Ms Fan were relied upon at least in part as evidence to prove the truth of their contents, including assertions we consider were intentionally implied in these statements. Evidence given of a statement made by someone who is not a witness to prove the truth of the statement’s content is hearsay evidence.[13]
[38] Section 17 of the Evidence Act displaced the existing (very complex) common law in relation to hearsay evidence. Section 17, generally referred to as the exclusionary rule, provides that a hearsay statement may only be admitted pursuant to the Evidence Act or some other Act.
[39] Section 18 provides the principal exception to the s 17 exclusionary rule and is relevant in this case:

18 General admissibility of hearsay

(1) A hearsay statement is admissible in any proceeding if—

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b) either—

(i) the maker of the statement is unavailable as a witness; or

(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

(2) This section is subject to sections 20 and 22.

[40] Here, it is indisputable that the maker of the statement is unavailable as a witness — the first limb of the test for admissibility under s 18.
[41] The second limb of the test is that there be reasonable assurance that the statement is reliable. This Court in TK v R commented:[14]

The issue of reliability is ultimately a jury matter. A court, when considering admissibility under s 18(1), does not have to assess the reliability of the hearsay statement against the criminal standard of proof. What is instead required is a scrutiny of the circumstances surrounding the statement and an assessment, in that context, that there is a “reasonable assurance” the statement is reliable. If admitted, the function of weighing up the surrounding circumstances of the hearsay evidence and assessing its overall reliability passes to the jury.

[42] Even if the first and second limbs of the s 18(1) test are met, the statement must still be assessed for admissibility under ss 7 and 8 of the Evidence Act. Determining the admissibility of the evidence under ss 7 and 8 involves consideration of whether the probative value of the evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding.[15]
[43] Before leaving the discussion of the principles to be applied, we say something about the application of the hearsay rule to “implied statements”. Under pre-Evidence Act law, it was unclear whether the exclusionary rule extended to assertions implied within statements.[16] The Evidence Act has clarified this uncertainty to some extent. The Evidence Act defines “statement” as including a “spoken or written assertion by a person of any matter”.[17] An assertion requires an intention to assert.[18] If the speaker intended to convey the meaning relied upon, the statement falls within the definition. If the speaker did not so intend but reliance is nevertheless sought to be placed upon the inferences sought to be drawn from the statement, the statement will fall outside the definition.

Admissibility of victims’ statements under the law prior to the Evidence Act

[44] The Crown advances detailed submissions on the approach this Court should take to the admissibility of a victim’s statements in circumstances such as these. Ms Markham suggests that R v Liu, a recent decision of the High Court, applies the wrong approach to admissibility and seeks this Court’s correction of what she characterises as a wrong turn in the law. She argues that the statement in Liu and the statements in this case are of a kind which would have been admissible under preEvidence Act law and should be admissible now, particularly in light of the Evidence Act’s more permissive approach to the admissibility of hearsay statements.[19] We agree that a review of the authorities does assist in identifying the issues arising and in navigating a path through those issues.
[45] Prior to the enactment of the Evidence Act, the rule excluding hearsay statements was subject to numerous exceptions — the product of judicial attempts to produce just results in the particular case but with the result that the law in the area lacked simplicity and coherence.[20] One of these exceptions related to evidence going to a person’s state of mind.[21] Sometimes evidence of this nature was classified as non-hearsay evidence — the evidence was only being relied on to show that the statement was made; the truth of the statement was neither here nor there. In others, the evidence was regarded as being used for a hearsay purpose (in that the truth of its contents was relied upon) and so formed an exception to the general prohibition on hearsay.[22] In both cases, the evidence was admitted only for a limited purpose and required judicial direction as to the uses to which the evidence could be put.
[46] The classic example of the first category of case is Subramaniam v Public Prosecutor.[23] There, the accused sought to defend a charge of unlawful possession of ammunition (during the Malayan emergency this was a capital offence) on the basis that he acted under duress exerted in the form of threats made by terrorists. His evidence of those threats was admissible because the truth of the threats was not at issue but rather whether the threats were made and could have been sufficient at law to constitute duress.[24] This case was not then a hearsay use of the evidence. What was relevant was the mere fact the statement was made — the actual truth of it was irrelevant.
[47] More difficult are those cases in which the statement is sought to be used as evidence of the statement-maker’s state of mind. In those cases the evidence was often relied upon by the party seeking to adduce the evidence to prove more than just the statement-maker’s state of mind; it was relied upon to prove facts underpinning the making of the statement. In some cases the courts allowed this use; in others, not. It is difficult to discern any principled basis for the distinction.
[48] R v Blastland was a case in which the evidence was not allowed to prove facts underpinning the making of the statement.[25] It is a case which provides necessary background to the development of this area of law in New Zealand. Mr Blastland was accused of murder. He wished to adduce evidence from witnesses that another man had made statements which provided some evidence that this man knew the victim was dead, in circumstances where only the killer was likely to know that. The House of Lords acknowledged that statements made to a witness by a third party could be adduced in evidence to prove that third party’s state of mind but, it said, only where that state of mind was directly relevant to an issue in the case.[26] That exception to the hearsay rule did not apply where the third party’s state of mind was not directly in issue. Mr Blastland wished to rely on the statement to prove facts underpinning the making of the statement — that the other man was in fact the murderer. Their Lordships said that such statements were not admissible as evidence from which an inference could be drawn as to the circumstances that lay behind or underpinned the making of the statement.[27] At the time, the Blastland decision was criticised for not admitting plainly relevant evidence.[28]
[49] We turn to the pre-Evidence Act position in New Zealand. R v Baker was decided just a few years after Blastland.[29] In R v Baker the Crown sought to adduce evidence from several witnesses of statements made by the deceased during a period of up to four weeks before her death in which she said that she was scared of the accused, that he was threatening towards her and that she did not know what he was capable of. That evidence was relevant to show that the accused’s account of events, that he had been invited around by the deceased to shoot cats, was not credible. If she was scared of him, it was unlikely she would be inviting him around to shoot cats. This was a hearsay use of the evidence — it mattered whether the victim was scared or not.
[50] In the High Court, the Judge ruled the evidence inadmissible. In allowing the appeal Casey J applied the principle in R v Blastland; as the state of mind of the deceased was so directly in issue the evidence was allowed in.[30] Cooke P, while recognising the evidence as hearsay, favoured taking a more direct route to admissibility. He said:[31]

At least in a case such as the present it may be more helpful to go straight to basics and ask whether in the particular circumstances it is reasonably safe and of sufficient relevance to admit the evidence notwithstanding the dangers against which the hearsay rule guards. Essentially the whole question is one of degree, which indeed is partly what Lord Bridge [in R v Blastland] said ... . If the evidence is admitted the Judge may and where the facts so require should advise the jury to consider carefully both whether they are satisfied that the witness can be relied on as accurately reporting the statement and whether the maker of the statement may have exaggerated or spoken loosely or in some cases even lied. The fact that they have not had the advantage of seeing that person in the witness box and that he or she has not been tested on oath and in cross-examination can likewise be underlined by the Judge as far as necessary.

As Elisabeth McDonald says:[32]

In response to the difficulties with admitting cogent hearsay evidence, the slowness of legislative reform and the lack of a predictable application of the exclusionary rule, judges in New Zealand, as in other jurisdictions, began to approach admissibility decisions by focusing on relevance and reliability. ... The dual inquiries of “necessity” and “reliability” informed admissibility decisions under this residual discretion up until the commencement of the Evidence Act 2006.

[51] The more direct route to the admissibility of evidence favoured by Cooke P was still more apparent in a decision three years later. In this case, R v Dahlberg, Casey J gave judgment for a Full Court of this Court.[33] Mr Dahlberg was accused of the murder of his wife, although her body had not been found. Statements by the (alleged) victim to friends and family, which were revealing of bitter matrimonial disharmony, were relied upon by the Crown as relevant to the accused’s state of mind or motive and to rebut any innocent explanation for the wife’s disappearance. The evidence indicated she was fearful of her husband during the two and a half months prior to her disappearance. The Full Court ruled that the statements had been properly admitted.[34] It said the statements could be used as evidence to support an inference as to the source of the wife’s fear — whether the husband maintained his animosity towards the wife until her disappearance. This is significant because this was a clear move away from the “limited use” approach of earlier cases where the evidence would only have been admitted to show the alleged victim’s state of mind, and not as evidence of the facts underpinning the making of the statements. Casey J said:[35]

We are satisfied that her manifestations of fear up to the date of her disappearance could be taken into account as a factor in determining whether the accused had maintained that earlier animosity towards her right up to the time she disappeared.

We also agree with Miss Goddard’s submission that it would be artificial not to allow evidence of her fear to be included as part of the general background of her outlook and attitude to life. There was nothing to indicate she had any intention of a sudden departure. ... Accordingly we see no substance in the complaint about wrongful admission of that evidence ...

[52] The position in pre-Evidence Act case law is, however, complicated somewhat by this Court’s later decision in R v Rajamani.[36] In Rajamani, evidence was led that in the fortnight prior to her death the victim had sought alternative accommodation for the stated reason that her husband, Mr Rajamani, had threatened to kill her and she was in fear of her life. The evidence was relied upon by the Crown to prove Mrs Rajamani’s state of mind, an issue relevant to rebut the husband’s narrative that she had provoked him on the day of her death. But the Crown also relied on this evidence to rebut Mr Rajamani’s claim he lost self-control and killed his wife, arguing that was an unlikely scenario when he had been threatening to kill her a few days earlier.
[53] This Court had no doubt the evidence was admissible on the basis of the “state of mind” exception to the hearsay rule, thus appearing to recognise the evidence was being put to a hearsay use.[37] But it said that the evidence was relevant only to the deceased’s state of mind,[38] thereby returning to the limited use rule which had been the norm prior to the decision in Dahlberg. It said the trial Judge had erred in directing the jury the evidence was relevant to assessing the husband’s claim he lost selfcontrol.[39] Nevertheless the appeal was not allowed by this Court as, on the facts of the case, the Court did not consider the Judge’s error had led to a miscarriage of justice.[40]
[54] This decision was then appealed to the Supreme Court and the appeal was allowed for several reasons.[41] Before the Supreme Court the Crown conceded the trial Judge’s directions were in error so the argument turned on whether a miscarriage of justice had resulted.[42] The Supreme Court considered it had and that this Court was in error in concluding otherwise.[43]
[55] On neither occasion, in the Court of Appeal nor the Supreme Court, does it appear that the Full Court’s decision in R v Dahlberg was addressed or even referred to.
[56] Mr Rajamani was subsequently retried and he again appealed his conviction. The focus of the appeal was similarly on the admission of evidence of statements made by the victim prior to her death. One of the grounds of appeal relied on a real risk that, given the trial directions, the jury could have made improper use of the evidence in question, treating it as evidence relevant to Mr Rajamani’s rather than Mrs Rajamani’s state of mind.
[57] This Court was satisfied the trial Judge, Potter J, had not told the jury they could take the evidence into account in determining Mr Rajamani’s state of mind and had carefully followed Heath J’s pre-trial judgment which addressed this issue.[44] Heath J was clear on this point — he applied the limited use doctrine despite the retrial being governed by the Evidence Act.[45] But this Court added what were, in effect, reservations as to how the appeal had been argued before it. It said it had not heard argument as to the extent to which the Evidence Act preserved or removed the common law’s limited use rules, which underpinned the original decision in Rajamani.[46]
[58] The Rajamani retrial was decided shortly after the coming into force of the Evidence Act. It is now clear that the limited use rules of the pre-Evidence Act law were not carried over into the Evidence Act. As Tipping J said in Hart v R:[47]

The general approach of the Evidence Act does not support the concept of limited admissibility of [evidence]. The statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all. Specific use provisions are expressly adopted when intended and appropriate.

The Liu decision

[59] This brings us to the decision in Liu. In that case the issue was again the admissibility of a deceased victim’s statements and the case fell to be determined under the provisions of the Evidence Act. Katz J heard evidence that, on the morning of the victim Ms Chen’s disappearance, she told a friend “if one day I am dying you please quickly call the police and Jack [Mr Liu] he’s the one who kill me”.
[60] In support of this evidence’s admission the Crown argued that the statement showed the relationship between the accused and the victim was unstable and becoming dangerous. Katz J said it was not in dispute that the statement could not be relied upon for the truth of its content; it was not in itself direct evidence that Mr Liu killed Ms Chen.[48] She said:[49]

Rather, it is relevant because certain other circumstantial facts may be able to be inferred from the fact that the statement was made. Those facts, if accepted, may constitute a link in a chain of circumstantial reasoning that could lead the jury to conclude that Mr Liu was Ms Chen’s killer.

[61] She said that, viewed in that way, the statement was arguably relevant to motive.[50] But because it was not relied upon for the truth of its content the statement was not hearsay and did not have to meet the reliability threshold under s 18. Its admissibility therefore fell for analysis under ss 7 and 8.
[62] The Judge acknowledged the evidence had a fairly high probative value because the other relationship evidence showed a relatively normal marital relationship and, if anything, tended to show the victim as the aggressor between the couple.[51] The Judge concluded:

[57] With some reluctance, given the clear probative value of the evidence, I have concluded that the “reverberating clang” of the deceased’s accusatory words, made in such close proximity to her disappearance, would “drown out all weaker sounds” in this case. No matter how strong a jury direction is given, Ms Chen’s statement to Cindy begs to be used by the jury for an impermissible purpose, namely as evidence that Mr Liu did in fact kill Ms Chen. If the statement is admitted, there is a strong risk of the jury concluding that, whatever happened, Mr Liu must have done it. The “If I die” statement is therefore likely to assume a much greater significance than is warranted, and be used to support an impermissible chain of reasoning.

[63] The Crown’s concession that it did not rely upon the statement for the truth of its content was perhaps confusing. As the Judge noted, the Crown was relying upon Ms Chen’s statement as indirect evidence that Mr Liu had killed Ms Chen. The Crown wished to use it to show he had malice toward Ms Chen and a motive to kill her because it was revealing as to the state of their relationship; in other words, the Crown wished to use it as a piece of circumstantial evidence tending to prove that Mr Liu killed Ms Chen.
[64] To determine if evidence is hearsay, one must identify the purpose for which the evidence is proposed to be called: “there is no such thing as hearsay evidence, only hearsay uses”.[52] In Liu, the evidence was being relied on for the assertion implied in it that Mr Liu’s behaviour had caused Ms Chen to believe he might kill her. We consider that this was an intended assertion by Ms Chen and, therefore, hearsay if relied upon as proof of that fact.
[65] As we have noted, the Evidence Act is more permissive of the admission of hearsay evidence where it is probative on a relevant issue and where it meets the s 18(1) threshold. The evidence that Ms Liu feared Mr Chen might kill her was, as the Judge observed, powerful but we consider that power was of an entirely legitimate nature. The fact that a victim is moved to tell someone that, if she is killed, X did it is surely important evidence as tending to prove that something in X’s behaviour has caused the victim to fear X in this way. We also accept the point made by the Crown on this appeal: that even under pre-Evidence Act law, this evidence would have been admissible under the approach articulated in Dahlberg.
[66] The risk of unfairness to Mr Liu the Judge clearly had in mind was that the jury might have used this as direct evidence that Mr Liu killed Ms Chen by following a deductive reasoning process to the effect that she said he would kill her, she has been killed, therefore, he must have done it. That is the same risk identified by Williams J in this case and which he addressed in his summing-up. As we come to, we think the direction he gave was adequate to meet that risk; it was a risk easy to articulate and it was also, we think, easy to explain to the jury why they must not use the evidence in that way.
[67] To sum up at this point, the Evidence Act’s approach to the admissibility of hearsay evidence is both simpler and more permissive than under the common law. If the evidence is hearsay, the first inquiry is as to the matters provided in s 18. If that admissibility threshold is met, the evidence must still pass through the gateway provisions of ss 7 and 8. Evidence of a victim’s statements expressing fear of a defendant, which is utilised for a hearsay purpose, will be admissible if it passes through the gateways of ss 18, 7 and 8. It is not in some special category of evidence which has to pass a higher threshold for admissibility.

Admissibility in this case

[68] The Crown presented the evidence of Ms Fan’s statements as part of the circumstantial evidence relied upon to prove that he was the killer. In closing, the Crown referred to the statements Ms Fan made to Ms Teo and to Sergeant Marner as evidence of Ms Fan’s fear that Mr Preston would kill her. It referred to Ms Fan’s text to Mr Preston (and his replies) and the statement to Mr Hoyhtya as evidence of telling and unusual statements made by Mr Preston.
[69] The defence addressed the statements in closing as follows:

Comments made by the deceased to various people such as Ms Teo and Mr Hoyhtya. You need to treat these comments with great caution. First, you need to be satisfied that they are reliable meaning that you are sure the deceased in fact made them. You are hearing someone say that someone made this statement so you must be sure the deceased in fact made the statement. You must be sure the witness is not only telling the truth about any such conversation but is accurate about what is said. You then need to consider what significance if any should be attached to that evidence.

The defence reiterates that none of the supposed threats to kill by Mr Preston were referred to by the deceased in her sworn affidavit in support of the second protection order, the one that was served the night before. None of the supposed threats to kill were in the affidavit. If any such threats had been made by the defendant to the deceased then the defence says to you, you would think that that would have been in the sworn affidavit.

[70] As noted, Mr Preston says on appeal that the statements were inadmissible hearsay. Although he does not challenge the reliability of the three witnesses’ evidence recounting Ms Fan’s evidence to them, he challenges the reliability of Ms Fan’s statements; he puts at issue whether Mr Preston made the statements she recounted and whether she was exaggerating the extent of her fears. Mr Gill argues secondly that the risk of unfair prejudice to Mr Preston far outweighs the probative value of these statements, particularly in light of the reliability issues in respect of them.
[71] We address the statements generally. We agree with Mr Gill that the Crown relied upon them for a hearsay purpose. They were only evidence of motive if the jury were satisfied that: (a) Mr Preston had threatened Ms Fan, (b) that Ms Fan believed he would kill her if she pursued full custody and (c) that his behaviour had caused her to hold these fears. The (a) and (b) uses of the evidence are clearly hearsay; (c) relied on an implied assertion in Ms Fan’s statements, one we consider was intended and so was a hearsay use.
[72] We now turn to the first issue — the reliability of the statements in terms of s 18 of the Evidence Act. The appellant contests the admissibility of this evidence on the grounds that Ms Fan’s statements were not reliable. At trial, the absence of reference to the threats in affidavits filed in Family Court proceedings was highlighted as a reason to doubt reliability. Mr Gill also submits there was no evidence to support the reliability of these statements. We take a different view. We consider the narrative overwhelmingly supports Ms Fan’s account of a tempestuous relationship. There is strong evidence that Mr Preston was obsessively focused on Ms Fan and on winning the custody dispute with her in respect of their children, that he spoke of her in very derogatory terms to others, and that he pursued actions designed to harm or disadvantage her in some way including the making of numerous complaints about her to various bodies. While Ms Fan may not have detailed the threats in her Family Court affidavits, she did tell Sergeant Marner of her fears for her safety. There was also no apparent reason for her to make up threats or conjure up non-existent fear when speaking to the police or friends. We consider there was reasonable assurance the statements were reliable. We now ask whether they pass the balancing test in s 8.
[73] The victim’s statements in which she recounted threats to kill plainly had considerable probative value. Mr Gill submits that the date on which the first statement was made, in July 2013, reduces its probative value. But the statement was made in the course of the ongoing conflict between Ms Fan and Mr Preston. It is part of the narrative of events leading up to Ms Fan’s murder.
[74] The other statements provide evidence that Ms Fan was fearful that Mr Preston might kill her, a fear engendered by him being “crazy”. This evidence was all relevant to and highly probative of the state of the relationship, Mr Preston’s conduct and, ultimately, Mr Preston’s motive to kill. It is indirect evidence that the interactions between Ms Fan and Mr Preston had such a character that she feared he would kill her, a fear focused particularly on custody issues with the children. It is evidence of a circumstantial nature tending to prove that Mr Preston did kill Ms Fan.
[75] There was a risk of unfair prejudice. The first risk was that Ms Fan’s statement that Mr Preston was crazy could be seen as likely to prejudice the jury against him. However, there was evidence before the jury that Mr Preston had mental health issues. The other risk of unfair prejudice was that the jury would give too much weight to the evidence. There is of course a risk that a jury will give great weight to someone who is seen to speak from beyond the grave to accuse the defendant. But that is capable of being addressed through judicial direction. We consider that in this case the Judge did an excellent job in that regard. His direction was well tailored to the facts of the case.
[76] When summing up, the Judge reiterated the caution the jury needed to take when assessing the evidence of Ms Fan’s statements in view of the fact that she was not able to give evidence nor able to be questioned in the witness box in relation to what she had meant in the various statements. He then directed the jury as follows:

[99] But there is another way in which these statements can be dangerous. Unless you are very disciplined, they are apt to send you down a false trail. So you must exercise real caution, I suggest, Mr Scott and members of the jury. You cannot, must not, conclude that these three statements are direct proof that Michael Preston must be the murderer. They cannot logically be that. Fan Rongmei is no clairvoyant, and when she made those comments (if you accept they were made) – remember the hearsay caution I gave you – she was not predicting the future.

[100] So the statements are not to be interpreted by you as a message to you from Mei, from beyond the grave somehow. That’s a very dangerous line of reasoning. The statements say nothing directly about whether Michael Preston murdered Fan Rongmei. They are evidence of the state of their relationship at the time she made them, if you accept she did; evidence of her fears about how Michael Preston might react over her planned move in the custody dispute to claim full custody. If you accept the statements were made, they are evidence that Michael Preston may have had a motive, but they are nothing more than that.

[101] That is why I say that they are just three pieces of evidence that you must place alongside the rest of the Crown’s case to determine whether you are sure.

[102] Do not be sucked into giving them more weight than they deserve.

[103] Note also the defence points out that none of these threats to kill were included by Ms Fan in her many sworn affidavits filed in the family proceedings. The defence says this is very surprising given the acrimonious nature of those proceedings. This should lead you, the defence says, to doubt their reliability, or at least to doubt whether this was literal.

[104] A short additional word about Ms Fan’s text on 22 July 2013 (page 9 of the pink book).

[105] Note that in reply to the question “Are you going to kill me?”, Mr Preston gives two relevant answers that you must also consider, a few seconds later he texts “?” and then less than a minute later “What you’re talking about?”. Then he calls, but it doesn’t look as if the call has been answered and then text: “Do you want kids; where and when?” and a short phone call a minute or so follows. So you need to consider Ms Fan’s text in the light of Mr Preston’s puzzled reply and then the offer of the children.

[77] Finally, we come to the pre-trial decision of this Court in which evidence was excluded. Mr Gill says that evidence is analogous to the statements we are presently considering. The subject of the appeal was the admissibility of a Facebook exchange in June 2013 between Ms Fan and a friend in which they were chatting about news that a woman had been killed in Miramar. It was in this context that Ms Fan said “maybe one day Michael crazy can kill me too.”
[78] This Court allowed the appeal, ruling the statement inadmissible.[53] The Court considered the statement was not reliable because it consisted of mere speculation by Ms Fan during a conversation on a related topic.[54] It also doubted its probative value if it was to be interpreted to mean that Mr Preston was presently crazy and might one day kill Ms Fan.[55] The Court said it was not obvious that she intended it to be taken seriously and “crazy” is a colloquialism of uncertain meaning.
[79] Although the Court accepted that the prejudicial effect of the statement was limited in circumstances where the jury would hear other evidence of statements made by Ms Fan, for example inquiring of Mr Preston why he had threatened to kill her, there was no such threat mentioned in the Facebook message.[56] Therefore, because the jury may have been disposed to attach more weight to the statement than it deserved, the prejudicial effect of the prediction from the victim outweighed the very limited probative value the particular statement possessed.
[80] Each of the statements we are now considering is of a different character to the pre-trial Facebook statement. The context of that statement was an exchange of gossip-style comments about a recent event in the news. It was not clear if it was a flippant remark or a statement made with more serious intent. But the fundamental point is that, from the content and tone, it was not clear that Ms Fan was intending to communicate a fear that her husband might kill her. We consider the pre-trial ruling distinguishable on the facts.
[81] We are satisfied that all four of these statements were properly admitted into evidence before the jury.

Third ground of appeal: Admissibility of statements made to pastor

Background

[82] A pastor from the appellant’s church, Mr Robinson, gave evidence at trial. Mr Preston regularly attended a Salvation Army church. Mr Robinson was delivering a message service to the assembled congregation on Sunday 10 November 2013, the day that Ms Fan’s body was discovered. As he delivered the service he noticed that Mr Preston was leaning forward in a pronounced way with his head resting in his hands, and that he was emotional and tearyeyed.
[83] After Mr Robinson had delivered his speech to the congregation he saw Mr Preston leave his seat. When he hadn’t returned after about five minutes Mr Robinson thought he would “go out and see does Michael need any counselling or assistance”. He found Mr Preston in the men’s bathroom crying over the hand basin and asked him if he could help him. After about a minute Mr Preston stood up from his position over the hand basin and composed himself to have a short conversation with Mr Robinson. Mr Robinson described Mr Preston as crying but coherent, extremely edgy and said that he moved away from the basin and looked to the heavens saying “What have I done?”
[84] Although Mr Robinson recognised that Mr Preston needed further assistance, his evidence was that he thought this issue did not need to be dealt with at that time. Rather the best thing was to calm him down so that they could catch up later in the week. Mr Robinson said that during the course of the conversation that ensued Mr Preston would calm down and then become increasingly emotional. In the course of the conversation Mr Preston said he did not know if he could cope any more, that he could not handle the pressure of the kids and that he wanted to end it.
[85] Objection was taken to this evidence pretrial on the basis that, as it was a privileged communication with a minister of religion, it should therefore be excluded from the evidence given at trial. The objection was taken under s 58 of the Evidence Act 2006 which provides:

58 Privilege for communications with ministers of religion

(1) A person has a privilege in respect of any communication between that person and a minister of religion if the communication was—

(a) made in confidence to or by the minister in the minister’s capacity as a minister of religion; and

(b) made for the purpose of the person obtaining or receiving from the minister religious or spiritual advice, benefit, or comfort.

(2) A person is a minister of religion for the purposes of this section if the person has a status within a church or other religious or spiritual community that requires or calls for that person—

(a) to receive confidential communications of the kind described in subsection (1); and

(b) to respond with religious or spiritual advice, benefit, or comfort.

High Court judgment

[86] It was common ground that Mr Robinson was a minister of religion for the purposes of s 58.[57] Williams J was also satisfied that the requirements of s 58(1)(a) were met because the context suggested that the communication to Mr Robinson was made in confidence.[58] He inferred that Mr Preston went to the men’s bathroom to obtain privacy and that, had a third party been present in the bathroom, the communication would not have been made. However, the Judge considered the second limb of s 58(1) was not met because the communication lacked a religious element and the communication was not made in a spiritual context — it was therefore admissible.[59]
[87] The appellant now contends that the evidence was wrongly admitted and that the overall context made clear the appellant was seeking and obtaining spiritual advice and comfort. Mr Gill submits that this is important evidence as it could have been construed by the jury as a confession.

Relevant legal principles

[88] Section 58 is modelled on a draft section prepared by the Law Commission in a 1994 preliminary paper.[60] It replaces the religious advisor privilege previously contained in s 31 of the Evidence Amendment Act (No 2) 1980 which covered only “confession[s]”. In its 1994 paper the Law Commission acknowledged that the courts had given the term confession, at first sight a specific concept, a broader meaning.[61] In R v Howse this Court said:[62]

‘Confession’ in s 31 ... means a confession in the religious sense and that, in my view, requires that the person making the confession is seeking some spiritual response for himself. In the ordinary sense that means an avowal of penitence and a request for forgiveness or absolution. That may not apply in the forms and beliefs of all churches but, at the least, there must be a request for spiritual help for the person making the confession.

[89] Nevertheless the Law Commission considered that the provisions should be broadened to include plainly religious and spiritual communications in a general sense, “whether or not they involve atonement for sin, and regardless of whether they are made within a religious structured community”.[63] But the Commission considered that the communications must still be made for the religious or spiritual benefit or comfort of those making them.[64]
[90] This qualification is carried forward in s 58(1)(b). Not all communications with clergy are protected. As s 58(1)(b) makes clear, the inquiry is as to the purpose for which the communication is made so that the intent or purpose of the person making the communication will be key to determination of the claim to privilege. This requirement is consistent with the rationale underlying the privilege which, as this Court has acknowledged, is that a person should not suffer temporal prejudice because of what is uttered under the dictates or influence of spiritual belief.[65]

Discussion

[91] It was therefore for Mr Preston to show that the communication was for the purpose of obtaining or receiving religious or spiritual advice, benefit, or comfort from Mr Robinson. Obviously the easiest way for Mr Preston to show this was to give evidence that such was his purpose in uttering the words that he did. It would then have been for the Court to consider that evidence, along with other evidence before it, to determine whether the requirements of s 58(1)(b) were met.
[92] Mr Preston chose not to give evidence on this point in the pre-trial hearing or at trial. The issue is then whether there was other evidence to show that this was the purpose of the communication. Mr Preston can and does point to the fact that he made the statements to a minister of religion, in a church building and during the course of a religious service. It was also made in response to a question from the minister as to whether he could help Mr Preston.
[93] However, there is nothing in the nature of Mr Preston’s communication to suggest that he was seeking religious or spiritual advice, benefit or comfort. There was no spiritual content in Mr Preston’s statements or in any of the statements made by the minister; there was no seeking of spiritual advice or solace. The statements by Mr Preston are more in the nature of a spontaneous utterance to express and, perhaps, relieve his own distress. Although it is not determinative on its own, we think the view we have taken is strengthened by Mr Robinson’s preparedness to give evidence as to this exchange — this preparedness suggests that he did not feel bound by confidence in respect of the communication.
[94] For these reasons we consider that Williams J was correct to find that the s 58 privilege for communications with ministers of religion did not attach to these this communication by Mr Preston and he was correct to rule it admissible.

Fourth ground of appeal: Trial Judge’s failure to put defence case properly

[95] It was the Crown’s case, and not disputed by the defence, that the killer wore gloves. There were no bloodied fingerprints found at the scene but there were bloodied impressions with a distinctive fish-scale pattern. The Crown produced evidence linking the powdery substance found in the palm imprint on the console of Mr Preston’s car to the powdery substance found in a brand of rubber gloves, Glam gloves, commonly used for household chores. The Crown suggested Glam gloves were also used by Mr Preston.
[96] On appeal Mr Gill argues that the Crown overstated the effect of their expert witness Professor Johnston’s evidence when it said that he ruled out paint as a source of the impression on the console; that overstatement was repeated in the Judge’s summing-up without correction.
[97] Mr Gill says secondly the summing-up was also deficient in that the Judge did not put to the jury what is characterised on appeal as a fundamental aspect of the defence case — that the impression on the console could not have been made by a Glam glove because the Glam glove had an additional substance not detected in the sample taken from the console: iron oxide.
[98] The relevant principles are not in dispute. The trial judge’s obligation in summing the case up for the jury includes an obligation to summarise the Crown and defence cases. The law is well stated in the following passage from R v Keremete:[66]

[18] ... A judge’s summing up must identify the fundamental facts in issue, be balanced in its treatment of opposing contentions with respect to those facts, and leave the jury in no doubt that the facts are for them and not for the judge. Rival contentions with respect to the factual issues will normally be summarised but there is a wide discretion as to the level of detail to which the judge descends in carrying out that task. Treatment of matters affecting the cogency of evidence is not required as a matter of law.

[19] The judge need not, and should not, strive for an artificial balance between the rival cases if the evidence clearly favours one side or other. A judge is entitled to express his or her own views on issues of fact, so long as it is made clear that the jury remains the sole arbiter of fact. Any comment on the facts should be made in suitable terms without use of emotive terms or phrases which could lead to a perception of injustice. But provided the issues are fairly presented, the comment may be in strong terms. Inevitably these are ultimately matters of degree and judgment.

The gloves and the palm print

[99] There was evidence that Mr Preston wore white-patterned gloves for washing up. When police searched his house they found only an unopened box of gloves which were pink. The Crown case was that Mr Preston had used his usual washing-up gloves at the murder scene and then disposed of them. The police purchased a number of gloves for testing. The pink gloves found in Mr Preston’s home had no fish-scale pattern, but the blue and white Glam brand was amongst the five types of gloves analysed that could have left the impression.
[100] The Crown called experts to describe the nature of the particles they found in the palm imprint on the console of Mr Preston’s car. One of the experts called by the Crown on this issue, Professor Johnston, found titanium dioxide, calcium carbonate, talc and kaolinite in the powder. Professor Johnston said that titanium dioxide was used commercially in a number of items to provide opacity such as in plastics, polymers and paints but it was also used as a filler material in gloves. He said the other substances detected were also used in the manufacture of gloves.
[101] In his closing address to the jury Crown counsel, Mr Burston, said:

The defence will likely suggest that the powder on the centre console of Mr Preston’s car is from old paint, possibly the paint Chris Wheatley was scraping at his parents’ house as a source of the powder on the console. Old paint, even old paint was ruled out by Professor Johnston.

[102] As the Crown anticipated, part of the defence attack on this thread of circumstantial evidence was to propose that the powdery substance in the palm print was more likely to be made up of powder from old paint. In closing, the defence said this about the evidence of Professor Johnston on the point:

Professor Johnston’s evidence was that the white residue deposit, in his opinion, was more likely to have come from a polymer source. He thought it was less likely that the white residue deposit had come from a source such as degraded paint. The defence says that the white residue on the console although containing titanium dioxide is not from a glove. This is because the white residue sample contained iron oxide when tested.

[103] The defence also emphasised that the palm print was found two years after Ms Fan’s murder and it was improbable it could have lasted that long in the location it was found. It noted the absence of evidence that Mr Preston had ever used Glam gloves and it pointed to the evidence of defence experts that palm-impression tests undertaken by defence experts using Glam gloves resulted in no identifiable palm impressions being left on a similar type of car console.
[104] The Judge summarised Professor Johnston’s evidence and in the course of doing so said:

In his evidence he ruled out paint as the source of the powder in that console print of Mr Preston’s left palm because the particles in the sample were not coated in silicate or aluminium or, in the case of old paint, did not contain hydrated silicate of aluminium particles. So not old paint.

[105] The appellant contends that the Crown overstated Professor Johnston’s evidence and that the Judge in this passage failed to correct that. We do not consider that the Crown did misstate the overall effect of Professor Johnston’s evidence. In his evidence-in-chief the Professor expressed the opinion that it was unlikely the titanium oxide particles came from paint because of the absence of a particular kind of coating on the particle found when it is used in paint. However, when it was put to Professor Johnston in cross-examination that he could not rule out “old paint” as a source of the powdery substance in which the print was made, he disagreed and said:

No. No, I believe you can, because as I said, in old paint it’s only the binder that has broken down ...

The effect of this evidence was that, even in old paint, the coating of the titanium dioxide particles present when they are used in paint would still be present.

[106] When challenged on the fact that he had not been so clear cut in the views expressed in his brief he said:

In my brief I haven’t said it’s excluded correct ... But the weight of evidence is that it is excluded.

[107] Finally, in re-examination, he confirmed he “ruled out” paint whether fresh or weathered as a source of the titanium dioxide found in the print.
[108] We also note that defence counsel did not raise any concern with the Judge following the Crown closing or the summing-up as to the accuracy of the Crown’s characterisation of the evidence or the Judge’s.
[109] The next point taken in connection with the gloves is the appellant’s contention that the Judge did not fairly summarise the defence because he did not recount the defence case that the impression could not have been left by a Glam glove; Glam gloves have iron oxide in them but the impression on the console did not.
[110] The Judge summarised the defence case in relation to the gloves: the lack of any connection between Mr Preston and Glam gloves; the tests undertaken for the defence that had been unable to replicate the same palm print on a surface like the console where Glam gloves had been worn; the improbability that any such print, even if made, would remain detectable two years later; and the possibility the print was made by old paint. The Judge did not mention the defence’s reliance upon the absence of iron oxide in the print but then that was not a point that featured in the defence closing. There was only a passing reference to iron oxide in trial counsel’s closing address.
[111] The Judge’s obligation was not to repeat every point made by the defence but rather to make clear the principal rival contentions between Crown and defence on the issues which the jury had to address. We are satisfied that he did that.

DNA evidence

[112] The Crown case at trial was that the knife used to murder Ms Fan was brought to the scene. Mr Hoyhtya and the children did not recognise the knife as one that belonged to the house, although one of Ms Fan’s friends claimed to have seen the knife there before. The Crown relied upon expert evidence to the effect that a partial DNA profile found on the murder weapon had come from either Mr Preston or his son.
[113] The defence response to this aspect of the Crown case was that this DNA evidence was meaningless. If the killer had used gloves, as the Crown contended, the killer could not have left the DNA. The DNA must then, on the defence case, have been left by Mr Preston or his son when using the knife for its intended kitchenrelated purposes. The defence could point to the evidence that other knives in the home had the same partial DNA profile present. The defence also attacked the reliability of this evidence. It said the DNA scientists accepted that transference is a real issue with the type of testing used in the relevant experiments.
[114] The appellant contends that the Judge failed to put that first aspect of the defence case: given the Crown case was that the murderer had worn gloves, the DNA results added nothing.

Analysis

[115] We consider that the Judge gave a careful direction as to the reliability of this aspect of the DNA evidence. He highlighted the DNA expert’s evidence as to the limitations of DNA testing of very small samples: it said nothing about when the DNA was placed on the object and nothing of how it got put there, whether directly from the owner of the DNA or by transfer through some other intermediate means.
[116] As to the other plank of this part of the defence case, again the Judge covered the point. He reminded the jury that they should not get caught up in thinking that forensic science will provide them with an easy answer and continued as follows:

It will for example be important for you to be satisfied that the knife was brought to the scene by the killer before you attribute any value to the evidence at all.

[117] That was of course precisely the issue raised by the defence. If the jury were not satisfied the knife was foreign to the scene, the DNA evidence could not assist them.

Fifth ground of appeal: Prosecutorial misconduct

[118] Mr Gill submits that some of the matters raised by the Crown in its closing were so highly speculative, emotive and derogatory that stern warnings were required from Williams J to counter the illegitimate prejudice caused to Mr Preston. Mr Gill accepts that trial counsel for Mr Preston did not object to the content of the Crown closing or seek any directions from the Judge. However, he says that factor should not preclude this ground succeeding in the circumstances of this case given the conduct in question.

Relevant principles

[119] The duties of a prosecutor have been described on many occasions, most authoritatively by the Supreme Court in R v Stewart.[67] While prosecutors are expected to be firm, even forceful, they are not entitled to be emotive or inflammatory, or to appeal to prejudice.
[120] In R v Roulston this Court put the matter as follows:[68]

... it has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack on the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person.

[121] Closing addresses are nevertheless an occasion for advocacy and prosecutors are entitled to use their skills as advocates to present the Crown case fairly but effectively. Juries expect that both counsel will present their positions forcefully and effectively and “no doubt expect and accept a degree of rhetorical passion in that presentation”.[69] Ultimately it is the duty of the trial judge to intervene if counsel oversteps the mark.
[122] A standard of perfection is not required. Inevitably in the course of a trial things are done or said which should not have been. The issue is whether the departure from good practice is so gross or persistent, or so prejudicial, that a miscarriage of justice has resulted.[70] Remarks the subject of challenge must be viewed in the context of the trial. Defence counsel and the judge are best placed to determine whether, in that context, the prosecutor’s remarks required correction by direction although the lack of complaint by defence counsel, while relevant, is not determinative.[71]
[123] On appeal, the question for this Court is:[72]

... whether the content of the address, coupled with the lack of any direction from the Judge on the issues arising, raises a real risk of a miscarriage of justice ... [I]t is the cumulative effect of the address as a whole and its likely impact on the jury that must be assessed.

Inflammatory comments

[124] Mr Gill points to various passages in Mr Burston’s closing address, including in the following passage in which Mr Burston addressed the jury about Mr Preston’s first interview with police on the night of Sunday 10 November 2013:

Remember the interview where, um, Andy Rhodes’ name came up. Now, there was a lot of interview but I suggest that that was ham acting, “Ahh Andy, Andy, Andy, I’ve just remembered Andy!” (ham acted). He hadn’t just remembered Andy, Andy was very much part of Mr Preston’s thinking processes over those day. “What do you think about Andy Preston – “Andy Rhodes?” “He’s an asshole.”

[125] And then later when addressing the various theories advanced by the defence as to who could have killed Ms Fan:

The hired hit-man theory must be seen for what it is – pure nonsense, borne out of a desperate lie told by a mother back in 2011 to get back to her children.

[126] Finally, Mr Burston described a discussion between Mr Preston and the pastor, Mr Robinson:

... he found Mr Preston emotional, distraught, extremely on edge and Mr Preston appeared to be looking to the heavens, “What have I done?” (loudly). “What did you do?” (loudly) ...

[127] Mr Gill submits that in each instance Crown counsel used language which was inflammatory, mocking of Mr Preston, and so beyond the proper bounds of prosecutorial conduct.
[128] The passage set out at [125] above can be put to one side as the “pure nonsense” referred to is attributed to Ms Fan, not Mr Preston — a “desperate lie told by a mother”.[73] That can hardly be characterised as derogatory of Mr Preston.
[129] We do not consider that either of the other two passages in counsel’s closing steps across the line between rhetorical flourish and inflammatory language. The reference to “ham acting” is a reference to bad acting. It was part of the Crown case that, during his police interview, Mr Preston was lying and feigning grief. Counsel was of course free to make submissions to that effect. Counsel’s conduct in imitating the ham acting when repeating the words Mr Preston spoke (we infer that is what the parenthetical remarks indicate he did) was no more than robust but not improper advocacy.
[130] The same can be said of the passage devoted to Mr Preston’s remarks made in the presence of the pastor. If these attempts at imitating Mr Preston’s delivery of these statements had been more frequent and sustained, it may well have amounted to conduct calculated to make Mr Preston seem ridiculous in the eyes of the jury. In our view, counsel may imitate in a genuine fashion but ought not to mock or exaggerate. That is not to preclude counsel inviting scepticism from the jury but such scepticism ought to be based on the record, not a travesty of it.
[131] Returning to this case, these were two isolated passages in a lengthy closing address. The overall tone of the address is measured and these passages are part of a structured and careful working-through of the evidence. Even in combination we do not see any risk that they could invite prejudice or strong feeling against Mr Preston such as to imperil his right to a fair trial.
[132] We also see the failure of defence counsel to raise this issue with the Judge as consistent with our sense of the impact these two brief passages would have had in the context of a long trial and a long address.

Inviting speculation

[133] The appellant argues that in closing Crown counsel invited the jury to speculate that:
[134] It is not in dispute that counsel must not misstate the evidence and that submissions they make must have foundation in the evidence produced at trial.

Witch’s hat

[135] The following passage appears in Crown counsel’s closing address:

[A’s] hat ... she says last seen at her dad’s in the cupboard, not located [when the house is searched]. Why would Mr Preston have taken [A]’s witches hat to Ms Fan’s address on the 8th of November 2013? Is that the reason that it’s not in the cupboard at his place when the police searched for it. Is that the source of the black polypropylene fibres on the floor and on the body and in the knife?

Halloween had just been. He needed a way of getting the door open. “You’ve served this protection order on me. I can’t have the kids. There’s this party that [A] has got to go to, it’s a dress-up party and she really wants to wear this – open the door please. I just want to give you [A]’s costume.” It was an innocuous item but it would’ve concealed the knife. All Mr Preston needed Ms Fan to do on 8 November was to open the door.

The Crown suggests that [A]’s missing witches hat was his way to get her to do that and to get close enough to strike with the knife. That would explain the fibres becoming embedded in the hilt of the knife, pulled out of that hat. That would explain the reason why the fibres are on her face and on her arms and on her hand and in the area where she would have been standing when she opened the door. What else? Think about that.

The Crown is simply suggesting that the most reasonable explanation for the source of the black polypropylene fibres found attached to the knife and on Ms Fan’s body and the laundry floor is that they came from [A]’s missing witches hat.

[136] Mr Gill submits there was no evidence the hat was used as a ploy to gain entry to the house, that it was used to conceal the knife, that daughter A was going to a Halloween party that weekend. He says further there was insufficient evidence that [A] was missing a witch’s hat and no firm evidence that the fibres originated from such a hat.

Discussion

[137] As the Crown identified, although its submission strayed more widely, the issue for the jury was whether it was satisfied that a witch’s hat missing from Mr Preston’s house was a possible source of the synthetic hair. It did not need to be satisfied of this beyond reasonable doubt to take the fact into account. Nor did it have to view the evidence, as it related to the hat, in isolation from the other evidence.
[138] The discovery of long black synthetic fibres at the crime scene was unusual and immediately raised the issue for police that the offender had worn a wig. Police found a photograph of Mr Preston and Ms Fan’s daughter A wearing a witch’s hat with shoulder length hair attached. The evidence was that A had worn the hat in 2011, some considerable time before the murder of Ms Fan. When asked, A said she thought the hat was in a cupboard at Mr Preston’s house, and confirmed it had not been at Ms Fan’s house. The hat was not found at Mr Preston’s house.
[139] Police purchased sample witch’s hats with wigs for testing. Of four sample witch’s hats, two were found to contain black synthetic fibres made out of black polypropylene. The fibres found at the scene were also black polypropylene.
[140] We consider that this evidence provided a proper basis for the Crown to invite an inference that the witch’s hat missing from Mr Preston’s house was the source of the fibres found at the scene.
[141] The Crown did describe how the witch’s hat could have been used to facilitate the attack on Ms Fan. In doing that it was simply laying out a possible narrative for the jury as to what had occurred. The prosecution often suggests to the jury a narrative of what may have occurred, although making clear that the Crown does not need to prove any particular narrative. We do not consider that the use of such a narrative technique invites impermissible speculation by the jury when the narrative does not stray into speculation as to the critical facts of which the jury must be satisfied. The part the witch’s hat played in the attack was not a critical part of the Crown case. The issue for the jury as it related to the hat was that properly highlighted by the Crown: was a hat missing from Mr Preston’s the most reasonable explanation for the presence of the long black fibres at the scene?
[142] Mr Gill also complains that the Crown changed its case from that presented in opening. In opening the Crown said that the presence of the fibres indicated that the wig was taken to Ms Fan’s home as part of a disguise by the killer. By the time of closing, however, Crown counsel had abandoned the suggestion that the wig had been used as a disguise. There is nothing in this point. The defence was not prejudiced by the change in Crown position, which we are told was the result of how the evidence emerged at trial — one of the Crown witnesses did not come up to brief.
[143] We see no risk of unfair prejudice arising out of the Crown’s treatment of this issue in closing. As we have noted, it was not addressed to a critical issue at trial. To the extent that the evidence of the fibres formed part of the Crown case, there was a proper evidential foundation for the submission.
[144] We are also satisfied that, in the overall context of the trial, the issues in relation to the hat were placed fairly and squarely before the jury. They were addressed in the defence closing with defence counsel describing the Crown’s theory, that the hat was used as a ruse to get into the house and to conceal the knife, as having “no resonance whatsoever and caused the [sic] speculation of the highest order”. The Judge outlined the competing contentions in respect of the hat in his summing-up, highlighted the defence position that the “ruse” scenario was improbable and warned the jury to be careful when considering A’s statement because, although she had last worn the hat in 2011, she had not been asked by the interviewer when she had last seen the hat.

Ms Fan’s “lie” about “hitman”

[145] This relates to the passage in the Crown closing set out at [128] above. Mr Gill submits that there was no evidence that Ms Fan told a lie when she told Mr Preston that her uncle in China had put a hit on her. We accept there was no evidence that Ms Fan lied. Equally, the only accounts that Ms Fan ever told Mr Preston of a “hit” being put on her came from Mr Preston, his Facebook entries, and his police interviews so that it can properly be said that Crown counsel’s submissions to the jury on this were favourable to the defence because they proceeded on the assumption that Ms Fan had made these statements to Mr Preston. In any case, we see nothing in this point. It was not part of the defence case in closing that a hitman had killed Ms Fan and so Mr Preston’s defence cannot have been prejudiced by the Crown submission on this point.

The killer had staged a burglary

[146] In closing Crown counsel said, “Thinking about all of this evidence, you might conclude that what we see in the scene photographs was staged to look like a burglary. Who would have the motive to do that?” Mr Gill submits there was no evidence this was a staged burglary. This seems to us a makeweight argument because, as is conceded by the appellant, there was clear evidence of the bedroom being ransacked. There was also evidence that a jewellery box had been upturned on the bed. And as Crown counsel submitted, “there’s no clear evidence that anything was taken”.

That the nature of the attack on Ms Fan meant that it was a “personal killing”

[147] In his closing address Crown counsel submitted to the jury that they “may conclude that whoever did that hated Mei Fan. This was very personal. The killer had the last say.” Mr Gill submits that there was no evidential basis for the submission that the style of killing suggested it was “very personal” — the pathologist did not so describe it, and nor was the pathologist asked about it. The submission was, however, highly prejudicial given the evidence of a tempestuous relationship between Mr Preston and Ms Fan.
[148] We do not consider that this submission required expert evidence to underpin it. It was rather a common sense submission flowing from the very particular nature of the attack upon Ms Fan. There were numerous knife wounds, suggesting “overkill”. Moreover, the wound track of the final knife thrust was consistent with it having been retracted a little before the final thrust. The killer also left the knife protruding from Ms Fan’s neck.

That the attack had taken place over about five to fifteen minutes

[149] Part of the Crown case was that the murder of Ms Fan had been carried out in haste. This was a critical part of its case, as there were only relatively narrow windows of opportunity for Mr Preston to have committed the crime. In closing, Crown counsel submitted:

Did Mr Preston have any windows of opportunity to kill his wife before 2.00 pm on Friday the 8th. In thinking about this, you will need to consider how long did it take to get in, kill, move around and get out. When you think about what was involved in the act of entering, killing, moving around the house and leaving, I suggest the answer to this is also plain. As little as five minutes, as much as 15 minutes. It’s in that sort of time frame, isn’t it?

[150] Again Mr Gill submits there was no evidential basis for this submission, in particular no expert evidence. But the evidential basis for the submission is set out in the very passage referred to. The Crown was entitled to invite the jury to make their own assessment of how long these acts would have taken. No expert would be in a better position that the jury to undertake this assessment.

That the socks found by Ms Fan’s body had been taken to the address by Mr Preston as part of the change of clothes

[151] The appellant complains that the Crown improperly attempted to link him to a pair of socks found next to the body of Ms Fan without a proper evidential basis for that submission.
[152] There was evidence that the socks were a pair of men’s socks and had been used to wipe blood. In closing, Crown counsel proposed a series of questions for the jury to ask itself:

... were the socks taken there by Mr Preston as part of a change of clothes? Were they then used instead to wipe over where he had been standing on the lino in the laundry getting ready to change into the new pair of socks, when he thought, oh, footprints. ... Did Mr Preston make a mistake and leave the socks behind? ... What other reasonable explanation is there for those socks being there by Ms Fan’s right knee, next to the wiped area of blood?

[153] We consider there was a proper evidential basis for this submission. As the Crown submits on appeal:

Summary on appeal against conviction

[154] To conclude, Mr Preston has not shown that a miscarriage of justice occurred in his trial. All evidence was properly admitted, Mr Burston’s closing was appropriate and Williams J’s rulings and directions to the jury were complete, accurate and tailored to the particular needs of the trial.

Sentence appeal

[155] Mr Gill accepts that, because of the nature of Mr Preston’s offending, s 104 of the Sentencing Act 2002 applied to his sentencing. Section 104 provides that the court must make an order imposing a minimum period of imprisonment of at least 17 years in cases where certain aggravating features are present, unless satisfied that it would be manifestly unjust to do so.
[156] Williams J imposed a minimum period of imprisonment of 19 years on Mr Preston.[74] He said that while all murders are by definition brutal and cruel, this killing was brutal, cruel and callous to a very high level.[75] The Judge identified the following aggravating factors, which we link to the provisions of s 104:
[157] Mr Preston submits that the minimum period of imprisonment of 19 years was manifestly excessive, grounding this submission squarely upon an alleged disparity between the 19 years and the minimum periods imposed in other cases: R v Scott, R v Kaur, R v Roigard and R v Singh.
[158] We make a preliminary observation. Whilst consistency in sentencing is important, no two cases are ever identical. It is difficult to make a case that a minimum period of imprisonment imposed under s 104 is manifestly excessive by reference to a sentence imposed in another case of murder if the circumstances and nature of the offending are different.
[159] The defendant in R v Scott had planned his wife’s murder, buying knives and tickets to leave the country after the attack.[79] In breach of a protection order the defendant went to his wife’s house. He attacked her immediately upon her return, stabbing her repeatedly. When his stepdaughter and her partner came to the aid of the victim, he stabbed each of them. He pleaded guilty to the murder of his wife and the attempted murder of his step-daughter and her partner. The Judge imposed a minimum period of imprisonment of 17 years.
[160] Although we accept that the attacks on the other victims were aggravating factors not present in this case, we consider that the murder of Ms Fan involved a higher level of planning, brutality and callousness than was present in that offending. We also consider that the sentence in R v Scott was lenient.
[161] In R v Kaur, the two defendants, lovers, planned and carried out the murder of the second defendant’s husband.[80] Section 104 was engaged because of the calculated planning, and the callousness involved in the attack. The victim was stabbed 13 times. A minimum period of imprisonment of 17 years was imposed. Mr Gill submits that, because of the lengthy planning, the offending was more serious than in the present case. We do not agree the planning was more extensive. Indeed, Lang J agreed that the offending in that case did not involve detailed planning.[81] In any case, there were aggravating features to this offending not present in R v Kaur including the home invasion/breach of protection order and what we consider to be the higher level of brutality and callousness involved in the attack.
[162] In R v Roigard, a father killed his son in order to avoid detection and prosecution for other offences.[82] The Judge found that two of the s 104 aggravating features were present. First, there was a high level of brutality and callousness. Mr Roigard killed his son with a wood splitter and then concealed his body, encouraging the belief his son had deliberately disappeared. The second factor identified was that the murder was undertaken to avoid detection and prosecution for an offence. The Judge sentenced Mr Roigard to a minimum period of imprisonment of 19 years — the same period as Mr Preston.
[163] We do not see the offending in R v Roigard as more serious than the present offending. There are simply different aggravating factors present.
[164] The offending in R v Singh is the most comparable to the murder of Ms Fan. It involved a breach of a protection order and followed on from the making of threats to kill.[83] The offending was planned. Mr Singh purchased a rope and a knife, apparently planning a murder-suicide. He broke into the house and stabbed his wife to death. A minimum period of imprisonment of 18 years was selected but then a discount of two years was allowed for a guilty plea.
[165] Mr Gill submits that the killing in Singh was more serious because of the clear planning for the killing. We see no meaningful point of distinction as to the level of planning. But we do consider that the level of callousness entailed in the murder of Ms Fan was considerably greater, given Mr Preston’s actions in leaving the knife plunged into her neck and his callous staging of a burglary as she lay dying.
[166] To conclude, the cases relied upon for Mr Preston do not support the argument that the minimum period of imprisonment imposed on Mr Preston was out of line with sentencing in comparable cases.
[167] It follows that the minimum period of imprisonment imposed upon Mr Preston was not manifestly excessive. Accordingly, the sentence appeal is dismissed.

Result

[168] The appeals against conviction and sentence are dismissed.



Solicitors:
Gill & McAsey, Lower Hutt for Appellant
Crown Law Office, Wellington for Respondent

[1] He was also convicted of breaching a protection order.

[2] R v Preston [2015] NZHC 3277 [Sentencing notes] at [42].

[3] R v Preston [2015] NZHC 1935 at [68].

[4] At [62].

[5] At [62].

[6] At [63].

[7] At [65].

[8] See the reasoning of the Supreme Court in Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [74].

[9] For example, there was evidence that Mr Preston used passwords including “KillerMe1” and “2L84u2no”.

[10] R v Preston [2015] NZHC 552 at [31] and [42]. The evidence referred to in (c) was admitted subject to a reservation as to whether there had been communication difficulties between Ms Fan and Ms Teo. These concerns were subsequently addressed.

[11] R v Liu [2015] NZHC 1125.

[12] Preston v R [2015] NZCA 445.

[13] Evidence Act 2006, s 4, definition of “hearsay statement”.

[14] TK v R [2012] NZCA 185 at [23].

[15] Section 8(1)(a).

[16] Law Commission Evidence Law: Hearsay (NZLC PP15, 1991) at [6].

[17] Section 4.

[18] R v Holtham [2007] NZHC 2153; [2008] 2 NZLR 758 (HC) at [44].

[19] See Elisabeth McDonald Principles of Evidence in Criminal Cases (Brookers Ltd, Wellington, 2012) at 139.

[20] See comments of Cooke P in R v Baker [1989] NZCA 62; [1989] 1 NZLR 738 (CA) at 741.

[21] McDonald, above n 19, at 134.

[22] In many cases there was simply no analysis as to whether the statements were hearsay or not.

[23] Subramaniam v Public Prosecutor [1956] UKPC 21; [1956] 1 WLR 965 (PC).

[24] At 970.

[25] R v Blastland [1986] AC 41 (HL).

[26] At 54.

[27] At 62.

[28] See for example PB Carter “Hearsay, Relevance and Admissibility: Declarations as to State of Mind and Declarations against Penal Interest” (1987) 103 LQR 106 at 115.

[29] R v Baker, above n 20.

[30] At 743.

[31] At 741.

[32] McDonald, above n 19, at 136.

[33] R v Dahlberg CA119/92, 17 December 1992.

[34] At 7.

[35] At 7.

[36] R v Rajamani CA140/06, 20 December 2006.

[37] At [78].

[38] At [80]–[81].

[39] At [82].

[40] At [84].

[41] R v Rajamani [2007] NZSC 68, [2008] 1 NZLR 723.

[42] At [21].

[43] At [21].

[44] R v Rajamani [2009] NZCA 225 at [14].

[45] R v Rajamani HC Auckland CRI-2005-004-1002, 30 May 2008 at [42].

[46] R v Rajamani, above n 44, at [30]–[31].

[47] Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 at [54]. We acknowledge that he was not dealing specifically with hearsay.

[48] R v Liu, above n 11, at [31].

[49] At [31].

[50] At [32].

[51] At [37]–[41].

[52] Paul Roberts and Adrian Zuckerman Criminal Evidence (2nd ed, Oxford University Press, Oxford, 2010) at 385 (original emphasis).

[53] Preston v R, above n 12, at [26].

[54] At [23].

[55] At [24].

[56] At [25].

[57] R v Preston, above n 3, at [33].

[58] At [37].

[59] At [38].

[60] Law Commission Evidence Law: Privilege (NZLC PP23, 1994) at [284].

[61] At [281].

[62] R v Howse [1983] NZLR 246 (CA) at 249.

[63] Evidence Law: Privilege, above n 60, at [283].

[64] At [283].

[65] R v Howse, above n 62, at 251.

[66] R v Keremete CA 247/03, 23 October 2003 (citations omitted).

[67] R v Stewart [2009] NZSC 53, [2009] 3 NZLR 425 at [19]–[22].

[68] R v Roulston [1976] 2 NZLR 644 (CA) at 654.

[69] R v Stewart, above n 67, at [22] quoting R v Daly (1992) 57 OAC 70 (CA) at 76.

[70] Pickering v R [2012] NZCA 311, [2012] 3 NZLR 498 at [169].

[71] R v Mussa [2008] NZCA 290 at [38].

[72] R v Hodges CA 435/02, 19 August 2003 at [7].

[73] See also our discussion at [144] below.

[74] Sentencing notes, above n 2, at [36].

[75] At [30].

[76] At [30] and [33].

[77] At [31].

[78] At [33].

[79] R v Scott [2016] NZHC 290.

[80] R v Kaur [2016] NZHC 125.

[81] At [40].

[82] R v Roigard [2016] NZHC 166.

[83] R v Singh [2014] NZHC 1246.

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