Mills v R [2020] NZCA 88 (3 April 2020)

Last Updated: 21 April 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA748/2015 [2020] NZCA 88

	BETWEEN	JAMES ANDREW MILLS Appellant
	AND	THE QUEEN Respondent

Hearing:	5 March 2020
Court:	Collins, Simon France and Lang JJ
Counsel:	E A Hall for Appellant F R J Sinclair for Respondent
Judgment:	3 April 2020 at 4pm

JUDGMENT OF THE COURT

1. The application for an extension of time is granted.
2. The application to adduce further evidence is declined.

100. The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

[1] On 11 May 2010, Mr Mills pleaded guilty to having murdered Mr Faulkner on 4 September 2009. He was sentenced on 16 June 2010 to life imprisonment with a minimum period of imprisonment (MPI) of 11 years.^[1] He now appeals his conviction, saying that Mr Faulkner was shot by accident during a struggle and that, at most, he is guilty of manslaughter.

Background

[2] At the time he shot Mr Faulkner, Mr Mills was living in a small housing unit in Palmerston North with his partner, Ms Parker. Mr Faulkner had been paid $140 to provide Ms Parker with methamphetamine. When he defaulted in completing his side of the drug deal, Mr Faulkner was invited to the place where Mr Mills and Ms Parker were living. There he was met by Mr Mills, who was armed with a modified rifle. Soon after Mr Faulkner entered the unit a neighbour heard Ms Parker arguing with a man. The neighbour then heard a sound consistent with a gun being discharged.
[3] At the time Mr Faulkner was shot, he was positioned close to the door of the unit with his head facing the direction of the door. The bullet passed through folds in the right sleeve of Mr Faulkner’s sweatshirt and then struck him beneath the right side of his chin. The bullet entered Mr Faulkner’s left upper chest and exited, splintering his left upper arm bone. The bullet penetrated the lounge wall at a height of 1.135 metres from the floor. Mr Faulkner was 1.85 metres tall. Police analysis suggested Mr Faulkner’s right arm must have been raised in the general direction of where the bullet was fired and that his right elbow was above the line of his right shoulder. The police concluded Mr Faulkner was likely to have been crouching or stooping at the time he was shot. This analysis is contested by Mr Mills.
[4] What is not disputed is that after he was shot Mr Faulkner managed to grab the gun from Mr Mills and walk out of the unit. He collapsed and died about 50 metres away. When he was found, the firearm was close to Mr Faulkner’s body.
[5] Later that day, Mr Mills went to the police station. His clothing was stained in places with blood. He told the police that Mr Faulkner had come to the unit where Mr Mills and Ms Parker lived in order to resolve a drug deal that had gone sour and, that it was Mr Faulkner who brought the gun to the unit. He said there was a physical struggle between himself and Mr Faulkner during which, Mr Faulkner presented the gun which discharged during the struggle.
[6] A subsequent scene examination recovered ammunition in the unit that matched the round that killed Mr Faulkner. The police also found gun parts in the unit that were connected to the gun that had been used to kill Mr Faulkner.
[7] Mr Mills was represented by an experienced criminal lawyer, who also had the assistance of another lawyer with experience over a number of years in criminal trials. Mr Mills has not complained about the advice he received from his lawyer and he has not waived legal privilege.
[8] During a telephone conference with counsel on 29 March 2010, Miller J was told that the murder charge was likely to be resolved by a guilty plea. The Judge directed Mr Mills be arraigned on 11 May 2010. In his minute the Judge recorded that there may have to be a hearing to determine where Mr Mills was standing in relation to Mr Faulkner at the time the fatal shot was fired. Mr Mills pleaded guilty before Mallon J on 11 May 2010. The Judge recorded at the time of Mr Mills’ guilty plea that there was a dispute between the Crown and Mr Mills as to the circumstances in which the shot was fired. Mallon J directed the Crown file a summary of facts by 28 May 2010 in anticipation of sentencing taking place on 16 June 2010.
[9] The summary of facts filed by the Crown on 28 May 2010 set out the forensic analysis undertaken by the police and the Institute of Environmental Science and Research (ESR). That summary states:

(a) Mr Mills was standing more than 1.18 metres from Mr Faulkner when he shot him. This calculation was based on the length of the rifle (680 millimetres) and the absence of ballistic soot and propellant on Mr Faulkner (the ESR said that ballistic soot and propellant would have been deposited within 50 centimetres of the muzzle of the gun used in this case).

(b) Mr Faulkner was standing near to and facing the door of the unit. His right arm must have been raised towards the direction of the gun when it was fired, and that he “must have been crouching or cowering down when he was shot”.

(c) The trajectory of the bullet was in a slight downward direction and fired from a height consistent with the barrel pointing slightly downwards at an angle of about five degrees from a height that must have been more than 1.135 metres above the floor.

[10] Mr Mills is 184 centimetres tall. The Crown case is that he was standing and holding the rifle when it was discharged.
[11] On 2 June 2010, Mr Mills’ trial counsel filed a memorandum in which he said:

The only potential dispute to be resolved is whether or not there was any struggle between the Prisoner and the deceased prior to the fatal shot being discharged. The Prisoner by his guilty plea acknowledges that, when he discharged the firearm he meant to cause the victim bodily injury likely to cause death and was reckless whether death ensued or not.

The second sentence of the paragraph we have quoted refers to Mr Mills being culpable of murder pursuant to s 167(b) of the Crimes Act 1961.

[12] Ronald Young J, the sentencing Judge, then issued a minute saying, that if the Crown was seeking an MPI greater than 10 years, then Mr Mills and his lawyer would need to decide if the assertion there was a struggle before the gun was discharged would be relevant to any MPI the Court was likely to impose.
[13] There was no application for a disputed facts hearing. Instead, sentencing proceeded on the basis that Mr Mills was guilty of murder because he shot Mr Faulkner in the circumstances referred to in his counsel’s memorandum of 2 June 2010, and which we have set out at [11].

Prosecution of Ms Parker

[14] On 19 May 2011, Ms Parker was charged with having been a party to the murder of Mr Faulkner. Her trial commenced in July 2012. Part-way through her trial Ms Parker pleaded guilty to manslaughter. That plea was entered after the conclusion of the Crown case where witnesses including Dr Rutherford, Mr Walsh, Mr Newton and Mr Hewitt had given evidence. Dr Rutherford is a pathologist, who examined Mr Faulkner’s body. Mr Walsh is an ESR scientist, who arranged for tests to be conducted on gunshot residue found on samples taken from Mr Faulkner’s hands and on particles extracted from the cartridge from which the bullet that killed Mr Faulkner was fired. Mr Newton is an ESR scientist, who examined the scene of the offending and Mr Hewitt is a police armourer, who examined the firearm in this case. We will refer to some of the evidence of those witnesses later in this judgment.

Extension of time to appeal

[15] On 24 December 2015, Mr Mills filed a notice of appeal against conviction. The notice of appeal was filed approximately five and a half years out of time. Mr Mills says the delay was due to his difficulty in locating new counsel and completing a review of the file. In order to deal with the merits of appeal, we grant an extension of time to appeal the conviction.^[2]

Grounds of appeal

[16] Ms Hall, Mr Mills’ counsel in this Court, filed comprehensive submissions which can be distilled to the following points.
[17] First, Mr Mills pleaded guilty through a “self-induced error”. That error is said to be attributed to:

(a) Mr Mills’ ill-health. At the time of the offending Mr Mills was taking anti-depressants and medication for pain relief and insomnia. He also had a habit of taking a variety of other drugs, including methadone, ritalin, cannabis, valium, mushrooms and methamphetamine. It is also said Mr Mills was feeling stress and pressure when he pleaded guilty and that he did not know a plea was expected from him when he pleaded guilty.

(b) His lack of understanding of the basis upon which the Crown said he was guilty of murder. This aspect of his case is said to have been caused by the absence of a summary of facts at the time he entered his plea and the fact that two ESR witness statements were only disclosed on 31 May 2010.

(c) His desire to protect Ms Parker. Mr Mills says that he thought that if he pleaded guilty to murder the Crown would discontinue the charge of being a party to murder against her.

[18] Second, the Crown cannot exclude the reasonable possibility that Mr Mills had a tenable defence to the charge of murder. This aspect of the appeal is founded on the following propositions:

(a) The Crown cannot reasonably exclude the possibility that there was a struggle between Mr Mills and Mr Faulkner as stated by Mr Mills when he spoke to the police.

(b) There is expert evidence that supports Mr Mills’ case that he and Mr Faulkner were in close proximity when the rifle was discharged.

(c) There is expert evidence concerning the trajectory of the bullet that is consistent with Mr Mills’ statement that he raised the rifle up and away from Mr Faulkner, who was trying to pull the gun away from Mr Mills when it discharged.

(d) There is expert evidence that suggests the gun had a low trigger pressure.

[19] In order to support these propositions, Mr Mills seeks to adduce further evidence including an affidavit of Mr Mills dated 18 October 2019, and two affidavits from forensic experts, Mr Mastaglio and Ms Millington.

Governing principles

Miscarriage of justice

[20] Mr Mills’ conviction pre-dated the introduction of the Criminal Procedure Act 2011. His appeal is therefore to be determined under s 385(1)(c) of the Crimes Act. This means his appeal can only be allowed if he can demonstrate that his conviction constituted a miscarriage of justice.

Appeals from guilty pleas

[21] While it is possible for a defendant to successfully appeal his or her conviction following a guilty plea, such appeals are rarely allowed.
[22] The categories of circumstances in which a successful appeal may be brought following a guilty plea were considered by this Court in R v Le Page^[3] and Merrilees v R.^[4] In Whichman v R, this Court summarised the effects of Le Page and Merrilees when it said the cases where an appeal may succeed after a guilty plea has been entered will normally fall into one of the following categories:^[5]

(a) where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;

(b) where on the admitted facts the appellant could not in law have been convicted of the offence charged;

(c) where the plea was induced by a ruling which embodied a wrong decision on a question of law; and

(d) where trial counsel erred in advising as to the non-availability of certain defences or potential outcomes, or where counsel wrongly induces a decision to plead guilty under a mistaken belief or assumption that no tenable defence existed or could be advanced.

[23] The Court in Whichman acknowledged, however, the categories of circumstances which justify an appeal being allowed following a guilty plea are not invariably limited to the four categories referred to in that decision. The overriding consideration in each case is whether a plea of guilty by the appellant has produced a miscarriage of justice.^[6]

Analysis

The decision to plead guilty

[24] Ms Hall acknowledged Mr Mills’ circumstances do not fit within any of the categories referred to in Whichman in which appeals have been allowed following a plea of guilty. That was a proper concession by Ms Hall because:

(a) Mr Mills knew the nature of the charge and in particular, he pleaded guilty after receiving the benefit of competent legal advice about the implications of s 167(b) of the Crimes Act.

(b) There was, on the facts, no legal impediment to Mr Mills being guilty of the offence with which he was charged.

(c) The plea was not induced by any ruling that was wrong in law.

(d) There is no suggestion of error on the part of defence counsel.

[25] Ms Hall advanced this aspect of Mr Mills’ appeal on the basis that he pleaded guilty through a “self-induced error” that was caused by his poor health, his lack of understanding of the basis upon which the Crown said he was guilty of murder and his desire to protect Ms Parker.
[26] We accept that prior to the events of 4 September 2009, Mr Mills is likely to have frequently consumed a variety of illicit and prescribed drugs. His guilty plea was, however, entered eight months after he had been held in custody. There is no basis upon which we could conclude that his mind was adversely affected by any form of medication or drugs when he pleaded guilty.
[27] We also accept Mr Mills is likely to have been suffering from stress and pressure at the time he pleaded guilty. There is, however, no basis for us to conclude that his guilty plea was induced through some form of psychological or psychiatric condition.
[28] It is also very clear Mr Mills had the benefit of competent legal advice at the time he entered his plea. His trial counsel’s memorandum of 2 June 2010 explained that the guilty plea was made on the basis that Mr Mills was culpable under s 167(b) of the Crimes Act. Any responsible lawyer would have explained the implications of s 167(b) to Mr Mills. Mr Mills’ decision not to waive legal professional privilege and his acknowledgement that his trial lawyer cannot be criticised for the guilty plea leads us to infer that Mr Mills must have been fully aware of the basis upon which it was said he was guilty. We also believe any competent lawyer would have explained to Mr Mills when he was expected to plead. We reject the implication that Mr Mills felt pressured into pleading guilty.
[29] The claim Mr Mills pleaded guilty in order to save Ms Parker from being prosecuted for murder is also without merit. Ms Parker was not charged with being a party to the murder of Mr Faulkner until over a year after Mr Mills pleaded guilty to his offending. Although Mr Mills may always have thought Ms Parker was at risk of being charged as a party to murder, the date the charge was laid against her underscores the fallacy of Mr Mills’ claim that “when [he] pleaded guilty and was sentenced [he] thought that “any day now” they would drop the charge against Ms Parker”.
[30] In these circumstances, we are satisfied Mr Mills made a conscious, well‑informed decision to plead guilty to murder. He did so after reflecting on his circumstances for eight months and after obtaining competent legal advice. Although Mr Mills did not have the summary of facts or the key forensic reports when he pleaded guilty, he more than anyone knew what had occurred when Mr Faulkner was shot. It is not surprising that he recognised the futility of trying to defend the charge of murder based upon s 167(b) of the Crimes Act.
[31] In summary, there is no basis for establishing any of the recognised exceptional circumstances to allow an appeal against conviction where a guilty plea has been entered. We will however also analyse whether there is a tenable argument that a miscarriage of justice will arise if the appeal is dismissed.^[7] Mr Mills is essentially arguing that since there was no disputed facts hearing, an incomplete picture of the evidence existed at the time he pleaded guilty. He offers additional evidence to try to complete this picture.

Evidence

[32] It is necessary to explain in more detail the evidence relied upon by the Crown and by Mr Mills in support of their respective cases.

The Crown’s case

The scene

[33] The front doorway of the unit leads straight into the lounge where Mr Faulkner was shot. The front door is positioned at approximately 1 o’clock if one is standing in the middle of the lounge. At approximately 4.30 o’clock is a doorway that leads to a bedroom. Immediately adjacent to that doorway is an entrance way that leads into the kitchen. The entrance way to the kitchen is at about 5 o’clock. If a person stands in the entrance way to the kitchen and looks into the lounge their line of sight would be parallel to the right hand wall of the lounge and be directed towards the area where the front door is located.
[34] The dimensions of the lounge are approximately 5 metres by 3.75 metres. On the left side of the lounge, at 9 o’clock, was a three-seater couch. In the middle of the lounge was a single lounge chair. At approximately 6 o’clock was a two-seater couch that was positioned at an angle so that a person sitting on that couch would have looked towards the back wall of the lounge with their back facing towards the front door. That couch seems to have been used as the depository for laundry. Half way along the right-hand side of the lounge, at about 3 o’clock was a suitcase that is lying on the floor. The suitcase was next to a TV stand that was positioned closer to the front door than the suitcase.
[35] There were many other pieces of furniture and items in what was a very cluttered lounge. The furniture and items we have referred to, however, provide sufficient bearings for present purposes.

Where Mr Faulkner was positioned

[36] In his report and evidence at Ms Parker’s trial, Mr Newton commented upon the position of Mr Faulkner when he was shot. He explained in his report:

From a study of the direction of the bullet through the lounge front wall, the direction of the bullet through Mr Faulkner and from the positioning of the blood and tissue staining on the wall, I formed the opinion that Mr Faulkner was positioned by the front door with his head facing towards the front door when he was hit with a single shot. The shot had been fired in a slightly downwards direction across the lounge towards the front wall.

[37] Mr Newton also said in evidence:

I believe Mr Faulkner was standing side on to the trajectory of the bullet, ie the firearm. He would have had I believe his right elbow raised above his right shoulder and he may have had his head or his chin resting down on his chest and his knees may have been slightly bent so he was not in so much a crouched position but not standing up straight but slightly, slightly crouched...

...

Mr Faulkner would probably be leaning towards his right hand so with his arm, his elbow at least above his shoulder, his arm would have been outstretched most likely and leaning slightly towards his right hand side.

[38] Mr Newton explained that examinations of Mr Faulkner’s clothing revealed no evidence of soot or bullet propellant residue around the bullet holes in his clothing. Mr Newton conducted experiments using the gun used to kill Mr Faulkner and some matching unfired rounds. From those tests he concluded the muzzle of the gun must have been at least 50 centimetres from Mr Faulkner when it was fired.

Blood stains

[39] Mr Newton’s evidence was that heavy blood stains around the inside entrance area of the front door, the door itself and an adjacent wall demonstrated Mr Faulkner was shot very near the front door.
[40] Mr Newton also referred to blood stains on:

(a) a small table in the lounge;

(b) the lounge chair in the middle of the lounge; and

(c) the three-seater couch along the left wall of the lounge.

In addition, Mr Newton referred to a linear pattern of projected blood on the ceiling, on the wall adjacent to and above the three-seater couch and on a magazine rack next to that couch. Mr Newton thought these blood stains and patterns were consistent with Mr Faulkner being shot near the front door and then moving into the body of the lounge, where he swung his arm or other part of his body in a motion that caused the blood spattering to occur. The Crown case is that the blood stains we have referred to in this paragraph were created when Mr Faulkner grabbed the gun from Mr Mills. At that time, they were both near the centre of the lounge.

Trajectory of the bullet

[41] In Ms Parker’s trial, Mr Newton explained the experiments he conducted to determine the trajectory of the bullet that killed Mr Faulkner. He explained that after determining the point at which the bullet struck the wall of the unit behind where Mr Faulkner was positioned, Mr Newton arranged for a person of similar height to Mr Mills to stand at various positions in the lounge to determine how he would have held the rifle. Mr Newton said that from these experiments he formed the opinion that if Mr Mills was standing upright he could have held the rifle between his waist and his shoulder. If he was near the front door when the rifle was fired, then it would have been held closer to his waist. Mr Newton said that the further Mr Mills was standing from Mr Faulkner when he was shot, the higher Mr Mills would have had to have been holding the rifle. It is the Crown’s case that Mr Mills was likely to have been standing somewhere between the two-seater couch and the suitcase when he shot Mr Faulkner. That would have placed Mr Mills somewhere between 2.5 and 4 metres from the front door.

Residue samples

[42] Mr Walsh, a forensic scientist employed at the ESR, arranged for gun residue samples found on Mr Faulkner’s and Mr Mills’ hands to be analysed at a laboratory in Adelaide. Those samples were compared with samples taken from particles inside the cartridge that fired the fatal bullet. In his evidence at Ms Parker’s trial Mr Walsh said that six of the 20 particles taken from inside the cartridge contained mercury. He said it was “significant ... that none of the particles from the hands of Mr Faulkner or Mr Mills contained mercury”. Mr Walsh said the lack of connection between the particles taken from Mr Faulkner’s hands and those taken from the cartridge could be explained in one of two ways:

(a) the particles found on Mr Faulkner’s hands were not from the gun being discharged; or

(b) the particles found in Mr Faulkner’s hands came from the surface of the gun that may have been there from previous discharges using ammunition that contained mercury particles.

Mr Mills’ case

[43] Mr Mills’ explanation of the immediate events that led to Mr Faulkner’s death have changed with the passage of time:

(a) When he spoke to the police on 4 September 2009, Mr Mills said Mr Faulkner brought the gun to the unit occupied by Ms Parker and Mr Mills. When he was interviewed by the police on 11 September 2009, Mr Mills elaborated on his explanation saying that when Mr Faulkner arrived at the unit he and Mr Faulkner had a verbal exchange, during which Mr Faulkner pulled the gun from his jacket. Mr Mills said he grabbed at the gun and that at that point Mr Faulkner pushed him and that as he was stumbling back Mr Mills grabbed hold of the gun and that it then went off.

(b) Mr Mills was asked by the interviewing officer about other ammunition found in the unit which matched the round that killed Mr Faulkner. He was also asked about gun parts that the police found in a cupboard in the unit, which were associated with the gun used to kill Mr Faulkner. Mr Mills was not able to provide an explanation for that evidence.

(c) In his affidavit in support of his appeal, Mr Mills takes a different tack. He now says:

Ms Parker was at the flat with me when Mr Faulkner arrived. Ms Parker and I were talking in the kitchen when he came to the door. As he came into the flat I came out of the kitchen area holding the gun, I had it pointing down by my side. I said to Mr Faulkner, “sit down, we need to talk”. Ms Parker went behind Mr Faulkner to shut the front door and as she walked around behind him, and then to the side of him once the door was shut, Mr Faulkner backhanded her – hard. He then came for me. He grabbed out towards me reaching for the gun. I lifted up the gun and tried to pull it away from his reach so he couldn’t grab hold of it. I couldn’t physically step back so I pulled the gun upwards by lifting my elbows up above my shoulders. The gun was still facing downwards but now at an angle as it was held higher.

Mr Faulkner reached out and grabbed at the gun. I can’t say for certain if he had hold of it when it went off but he was definitely reaching for it trying to grab at it. It fired as I was pulling it away from him. I did not intentionally pull the trigger. It was not aimed in firing mode at him. It gave me such a fright when it fired.

(d) Mr Mills annexed two statements to his affidavit, one dated 17 December 2018 and the other 3 July 2019. In his statement of 3 July 2019, Mr Mills describes where he was standing at the time he shot Mr Faulkner. He has marked that position with an “X” on a photograph of the lounge that is annexed to his statement. The “X” is next to the suitcase lying on the floor against the right-hand wall of the lounge. The suitcase was positioned about two metres from the front door. Mr Mills marked with a “Y” where he said Mr Faulkner was positioned when he was shot. The “Y” is slightly closer to the television stand from where the Crown says Mr Faulkner was positioned when he was shot.

[44] Before analysing Mr Mills’ current explanation in light of the other evidence we make the following general observations regarding its credibility. First, he offers it for the first time almost ten years after he entered his guilty plea. Second, it varies considerably from the version he gave to the police in 2009. Third, his refusal to waive privilege means we cannot it compare it to the version of events he clearly provided to his lawyers before they filed the memorandum dated 2 June 2010.

Mr Mastaglio

[45] Mr Mills relies on an affidavit dated 15 October 2019 from Mr Mastaglio, a forensic firearms consultant who has reviewed the evidence in this case. Mr Mastaglio said the Crown’s case concerning the distance between Mr Mills and Mr Faulkner at the time the gun was discharged was not necessarily correct. He said that “the distance between the two would depend on how the gun was held – they could have been closer than 1.18m”.
[46] Mr Mastaglio said in his affidavit:

The [Crown’s evidence concerning the] trajectory through the body and into the wall has been extrapolated as a straight line. This may not have been the case due to the bullet being slightly deflected as it passed through the [deceased]’s left humerus bone. However, the proposed trajectory is a reasonable one given the wound ballistics and damage to the wall.

[47] Mr Mastaglio said that:

I also agree that Mr Faulkner’s right arm must have been raised so that the holes lined up with the wounds through his chin and chest. Additionally, the oblique angle of the wound track across the [deceased]’s chest means that he must have been virtually side-on to the direction of the shot.

[48] Mr Mastaglio said in his conclusions:

It is reasonable to conclude that the muzzle of the gun was in excess of 50cm from the [deceased] when the gun was fired.

No ballistics evidence has been seen to support the proposition that the gun was discharged during a struggle.

The distribution of the bullet holes in the sweatshirt could be explained by the alternative proposition that the garment was “bunched up” due to being grabbed, however the absence of substantive close-range effects, i.e. soot/propellant deposition around the first bullet entry hole, infers a minimum muzzle to garment distance of 50cm.

[49] Mr Mastaglio said that if the cartridge that had been used in this case had previously been modified, then it would be likely to discharge less propellant and soot than an unmodified cartridge. There was no indication that the cartridge had been modified but there was a possibility it had been changed because equipment associated with the modification of ammunition was found in the unit where Mr Mills lived. In any event, Mr Mastaglio stated he would expect a modified cartridge which was capable of discharging the fatal bullet int his case to have deposited soot propellant and residue on Mr Faulkner’s clothing if he was standing very close to the rifle’s muzzle.

Ms Millington

[50] Mr Mills also relies on an affidavit of Ms Millington, a forensic scientist who examined photos and descriptions of the bloodstains and spatter marks in the unit. In her affidavit, dated 11 October 2019, Ms Millington explains that forward-spatter patterns are projected from the victim’s exit wounds in the general direction of the shot fired. This can assist in positioning the victim at the moment they were shot. Ms Millington said other than the distribution of fine tissue spatter on the wall where the bullet penetrated, she could “not identify any other patterns within the scene that could be exclusively attributed to the shot and/or that could help in determining the precise location and/or position of [Mr Faulkner] at the moment that he was shot”. In Ms Millington’s view, the location of the forward-spatter pattern appears to be in broad agreement with the position that Mr Mills described in his statement of 3 July 2019.

Residue on Mr Faulkner’s hands

[51] In her submissions, Ms Hall contended that at Ms Parker’s trial Mr Walsh “confirmed that Mr Faulkner had gunshot residue on his hands – meaning he was in close proximity when the firearm had been discharged”.

Trigger pressure

[52] There was evidence the gun used to kill Mr Faulkner had a lighter than normal trigger pressure although when tested by the police armourer, the gun did not discharge when dropped.

Is there nevertheless a tenable defence?

[53] Mr Mills argument on appeal is that the gun was discharged due to a struggle, not because he meant to cause Mr Faulkner bodily injury or was otherwise culpable under s 167(b) of the Crimes Act. This is being advanced on “fresh evidence” of Mr Faulkner’s position when he was shot. There are five aspects to the forensic evidence that require analysis:

(a) residue on Mr Faulkner’s hands;

(b) blood stains/spatter evidence;

(c) trajectory evidence;

(d) position of Mr Faulkner when shot; and

(e) trigger pressure.

Residue on Mr Faulkner’s hands

[54] Ms Hall’s submission that Mr Walsh’s evidence confirmed the residue on Mr Faulkner’s hand showed he was in close proximity to the firearm when it was discharged does not accord with Mr Walsh’s evidence in Ms Parker’s trial.
[55] Mr Walsh said it was significant that the particles taken from Mr Faulkner’s hands did not contain mercury and were therefore not consistent with six of the particles extracted from the cartridge from which the bullet was fired. Mr Walsh’s evidence goes no further than to show it was unlikely the particles found on his hand were associated with the bullet that killed him. Furthermore, Mr Walsh’s evidence is consistent with Mr Faulkner having grabbed the barrel of the gun after he had been shot and in doing so, picked up particles from the barrel of the gun that were not connected to the bullet that killed him.

Blood stains/spatter evidence

[56] At most, Ms Millington’s evidence suggests the forward blood spatter movement was broadly consistent with the position that Mr Mills described in his statement of 3 July 2019. There are two reasons why Ms Millington’s evidence does not undermine the safety of Mr Mills’ conviction:

(a) Ms Millington’s opinion does not impact upon the overwhelming forensic evidence that Mr Faulkner was in close proximity to the front door when he was shot.

(b) The blood spatter marks that Ms Millington comments upon are entirely consistent with the Crown case that Mr Faulkner moved towards the middle of the lounge and grabbed the gun after he had been shot by Mr Mills.

Trajectory evidence

[57] The description Mr Mills now gives of holding the gun high with his elbows above his shoulders is impossible to reconcile with him discharging the gun at close quarters while he stood next to the suitcase and shot Mr Faulkner when he was standing close to the front door. A gun held in the way now described by Mr Mills would have required him to have been standing much further back in the lounge, well away from where he now places Mr Faulkner and himself. Mr Mills also says that he could not physically step back when Mr Faulkner tried to grab the gun from him. That statement is hard to reconcile with Mr Mills’ description of where he says he was standing when Mr Faulkner was shot.

Position of Mr Faulkner’s body

[58] None of the forensic evidence advanced by Mr Mills undermines the Crown’s case that Mr Faulkner was positioned near the front door at least 1.18 metres from Mr Mills with his body side-on to the gun and his head facing towards the door. His legs must have been slightly bent and his chin lowered towards his chest with his right elbow raised. Those are not the actions of a man grabbing for a gun. If Mr Faulkner were truly grabbing for a gun he would have had to have been facing the weapon and be positioned far closer to the weapon than the forensic evidence demonstrates.

Trigger pressure

[59] The evidence of the gun having a light trigger pressure does not advance Mr Mills’ case because the balance of the forensic evidence fails to support his claim that the gun discharged during the course of a struggle or when Mr Faulkner was attempting to grab the weapon.

Conclusion

[60] The forensic reports advanced in support of Mr Mills’ appeal do not provide any cogent basis upon which we can conclude that Mr Mills accidentally shot Mr Faulkner during the course of a struggle or when Mr Faulkner was trying to seize the weapon. On the contrary, the reports from Mr Mastaglio and Ms Millington substantially confirm the Crown case that Mr Mills must have shot Mr Faulkner when he was near the front door of the lounge in a stooped position with his head facing towards the door. All experts agree the muzzle of the gun must have been at least 50 centimetres away from Mr Faulkner when he was shot. The trajectory of the bullet, however, demonstrates that Mr Mills could not have been holding the gun in the way he now describes and at the same time be standing next to the suitcase in the lounge. Mr Mills’ most recent explanations as to how Mr Faulkner was shot and the forensic evidence he now wishes to adduce do not impact upon the safety of his guilty plea.
[61] We decline to admit the additional evidence offered in support of the appeal. It is not cogent in the sense it does not undermine the safety of Mr Mills’ conviction.^[8] We need not make any ruling in relation to the evidence given by the Crown’s witnesses at Ms Parker’s trial because that evidence clearly supports the Crown’s case that Mr Mills was guilty of the murder of Mr Faulkner.
[62] We are satisfied that there was no risk of a miscarriage of justice caused by Mr Mills having pleaded guilty to the murder of Mr Faulkner.

Result

[63] The application for an extension of time is granted.
[64] The application to adduce further evidence is declined.
[65] The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Mills HC Palmerston North CRI-2009-054-3808, 16 June 2010.

^[2] Crimes Act 1961, s 388(2).

^[3] R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA) at [16]–[19].

^[4] Merrilees v R [2009] NZCA 59 at [33]–[35].

^[5] Whichman v R [2018] NZCA 519 at [35].

^[6] At [36].

^[7] Gleason-Beard v R [2018] NZCA 349, [2018] 3 NZLR 699 at [44]–[46].

^[8] Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.