Swainbank v R [2021] NZCA 93 (26 March 2021)

Last Updated: 30 March 2021

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

CA295/2019 [2021] NZCA 93

	BETWEEN	STEVEN SWAINBANK Appellant
	AND	THE QUEEN Respondent

Hearing:	1 December 2020
Court:	Goddard, Lang and Hinton JJ
Counsel:	J D Lucas for Appellant Z R Hamill for Respondent
Judgment:	26 March 2021 at 10.00 am

JUDGMENT OF THE COURT

1. The application for an extension of time to file the notice of appeal is granted.
2. The application for leave to admit Mr Coyle’s affidavit as fresh evidence is declined.

100. The appeal against conviction is dismissed.

____________________________________________________________________

Table of contents

Para No

REASONS OF THE COURT

(Given by Goddard J)

Introduction

• [1] The appellant, Mr Swainbank, was convicted of a single charge of burglary in relation to the theft of a fish finder from a boat outside an Auckland property.^[1] He was sentenced to four months’ community detention.^[2]
• [2] Mr Swainbank appeals against his conviction. He says the jury’s verdict was unreasonable: the jury could not have been satisfied beyond reasonable doubt that he was guilty on the basis of the limited evidence connecting him with the offending. He also submits there was a miscarriage of justice for a number of reasons relating to the way in which his defence was conducted by trial counsel.
• [3] Mr Swainbank’s appeal was filed one day out of time. The delay was minimal and there was no prejudice to the Crown. An extension of time was not opposed. We therefore grant leave to file the appeal out of time.

Background

• [4] At some time between 3 December 2017 and 6 December 2017, a person entered a boat on a trailer parked at the front of the owner’s address on Auckland’s North Shore and stole a fish finder. In order to steal the fish finder, that person would have had to climb onto the boat, remove an instrument panel covering the fish finder that was screwed to the boat, cut the wires attached to the fish finder, and remove the fish finder from the boat.
• [5] A thumbprint was found on the interior lip of the instrument panel that covered the fish finder. That thumbprint was identified by the police as matching Mr Swainbank’s thumbprint on the police computer system. The address shown for Mr Swainbank in the police computer system was a North Shore address less than one kilometre from the location of the burglary. On 24 January 2018, some six weeks after the burglary took place, Constable Young went to that address, which is Mr Swainbank’s parents’ home. He found Mr Swainbank there and arrested him for theft of the fish finder.
• [6] Mr Swainbank was taken to the North Shore police station, where he participated in an interview with Constable Young that was recorded on DVD (the DVD interview). Mr Swainbank said he had had a small fishing boat as a teenager, but not since. He had worked on boats some two to three years previously when he was working for a business that supplied and serviced winches. Mr Swainbank told Constable Young that he was not familiar with the victim’s boat. From the photograph he was shown he identified the type of boat as a “Buccaneer”. He said he had never seen the boat. He had never been on that boat, or any boat like it. He had not been on any boat in the last two years.
• [7] Mr Swainbank did however recognise the type of trailer the boat was on as a “Hosking” trailer. Hosking Trailers were customers of the winch business he had previously worked for. He explained in the DVD interview that the work he did in relation to winches did not involve physically working on Hosking trailers: if they needed a winch, he would go to their premises and give them advice or drop off the product. He was more involved in sales of winches than servicing. Any servicing of winches was done in the winch business’s own workshop.
• [8] In the DVD interview, Mr Swainbank categorically denied any involvement in the theft of a fish finder from the boat. When he was told that his fingerprint was found on the interior of the boat, he repeatedly described that as “impossible”. The interview terminated shortly afterwards when Mr Swainbank said he wanted to speak to a lawyer.
• [9] Mr Swainbank suffers from spondylolisthesis: a medical condition affecting his spine. The condition causes him pain and can affect his mobility. At the beginning of the interview Mr Swainbank explained that he had a back injury that caused him pain. At times in the interview he displayed signs of suffering and distress.

The trial

• [10] The trial took place in the Auckland District Court before Judge Ryan and a jury. Mr Swainbank was represented by Ms Caitlin Oxnam and Mr Daniel Becker of the Public Defence Service (PDS). Mr Swainbank denied the offending. His case was that the Crown could not prove beyond reasonable doubt that he committed the burglary. Mr Swainbank did not give evidence or elect to call evidence.

Evidence at trial

• [11] The Crown called the owner of the boat, Mr Mitchell. He gave evidence about the boat being parked on his property during the relevant period. On 6 December 2017 he noticed that someone had broken in and stolen the fish finder. He said he did not know Mr Swainbank.
• [12] The Crown also called the Scene of Crime Officer (SOCO), and a fingerprint expert, Ms Benedict. Constable Young, the officer who arrested Mr Swainbank, was not called as he was overseas at the time. Constable Neves, who had succeeded Constable Young as officer in charge of the case, was called in his place. He produced Constable Young’s notebook entries and various exhibits including the DVD interview.

Jury questions and s 9 agreement

• [13] In the course of the Crown case the jury asked three questions:

(a) How did the police know where to make the arrest?

(b) Was there any medical assistance offered or accepted at the time of arrest or interview?

(c) At any point before the interview, was the defendant told what had been stolen from where?

• [14] Ms Oxnam suggested to Mr Swainbank that those questions should be dealt with by way of an agreement under s 9 of the Evidence Act 2006 (s 9 agreement). She and the Crown prosecutor drafted a s 9 agreement to respond to those three questions. Mr Swainbank signed the s 9 agreement. That agreement recorded that:

(a) The previous officer in charge was not available to give evidence. He made entries in his notebook dated 24 January 2018.

(b) The notebook recorded Mr Swainbank’s address as the North Shore address. Police have access to a computer database that contains information, including addresses, about “all sorts of individuals from all walks of life who may have interacted with the Police in the past”. Mr Swainbank had never been arrested for burglary, theft or any kind of dishonesty offending.

(c) The officer in charge’s notebook recorded notes about Mr Swainbank complaining of pain. Those notes were set out in the s 9 agreement.

(d) The notebook recorded that Mr Swainbank was arrested for the theft of a fish finder. He was given a full caution stating his rights. During the recorded interview, Mr Swainbank was told he was arrested for the theft of a fish finding unit from a North Shore address.

Closing submissions

• [15] In closing, the Crown emphasised three points that they submitted would satisfy the jury that Mr Swainbank had committed the burglary. First, the presence of his thumbprint on the inside of the panel that had been removed to access the fish finder. The Crown described this as “compelling evidence that tells us [Mr Swainbank] was on the boat”. The Crown said it was “hard to imagine a more incriminating spot to find it, on the inside of the panel that we know the burglar must have opened to get access to this fish finder”. Second, the Crown said Mr Swainbank clearly knew about boats, based on what he said in his DVD interview. Third, the Crown suggested Mr Swainbank had the opportunity to commit this offence, based on the fact that he was arrested at an address 700 metres from the victim’s home, which was recorded in the Constable’s notebook as his address. The Crown submitted that the fact that he was so close was important, because it gave him the opportunity to be the burglar. He must know the area and “maybe he’s seen the boat parked. We’ve seen how it’s just by the road, visible, and he’s seen it and seen an opportunity.”
• [16] The Crown closed on the basis that Mr Swainbank had not offered any plausible innocent explanation in the DVD interview for how his fingerprint came to be on the interior of the panel. The only realistic explanation for how his print got there was because he was the burglar. The statements he made in the interview about working in the winch business did not provide a plausible explanation for the presence of his thumbprint on the inside of the panel, in the light of his statements about never having been on a boat like this, and not working on Hosking trailers.
• [17] The Crown also anticipated an argument that Mr Swainbank could not access the boat because of his medical condition. Counsel referred to the owner’s evidence that it was easy enough to get onto the boat and noted that Mr Swainbank plainly could walk as the jury had seen him do so in the DVD interview. There was no evidence he could not get onto the boat and the fingerprint indicated that he did. The jury had not heard from any expert about any medical condition that would stop him getting into the boat.
• [18] Ms Oxnam’s closing on behalf of Mr Swainbank focussed on the limited evidence against him: “[o]ne fingerprint that’s all. That’s all the Crown case hangs on. There is no other evidence against Mr Swainbank. One fingerprint is simply not enough.” She submitted that it was perfectly reasonable that Mr Swainbank’s thumbprint was innocently left on the boat. The Crown had not proven its case beyond reasonable doubt.
• [19] Ms Oxnam referred to evidence from the boat owner and the SOC Officer about accessing the boat. She referred to the SOC Officer’s evidence about dusting the interior and exterior of the unit for prints. He had not dusted the side of the boat, where it could have been accessed. Only one fingerprint was recovered from the boat. Ms Oxnam said there were obvious areas on the boat that could have been fingerprinted but were not. She was critical of the overall adequacy of the police investigation.
• [20] Ms Oxnam emphasised that Ms Benedict, the fingerprint expert called by the Crown, had accepted that there is no way of determining the age of a fingerprint or when it was left. Environmental factors could determine the length of time a fingerprint remains on a surface. Ms Benedict had also accepted that the inside of the unit would not have been exposed to environmental factors as much as the outside of the unit. Ms Oxnam submitted that the jury could not be certain when the fingerprint was left, in circumstances where the expert could not be certain.
• [21] Ms Oxnam also emphasised that the owner had confirmed that the boat was serviced at the Fish City boat yard on Rosedale Road once a year. The owner dropped off the boat and did not see who got on the boat during that service. Mr Swainbank had worked around boats, serviced boat parts, worked with winches, and was linked to Hosking Trailers, which is based near Rosedale Road. It was possible that Mr Swainbank and this boat, more specifically the relevant panel, had crossed paths at some point over the years on Rosedale Road where the boat was regularly serviced.
• [22] Ms Oxnam noted that the SOC Officer did not know if the address at which Mr Swainbank was arrested was his normal residential address.
• [23] Ms Oxnam referred at some length to Mr Swainbank’s DVD interview, where he talked about his back injury. At that interview he was visibly in distress because of his back injury.

The Judge’s summing-up

• [24] In her summing-up, Judge Ryan referred to Mr Swainbank living nearby “no more than nine to 12 minutes’ walk away”. She referred to the Crown’s submission that this meant Mr Swainbank had the opportunity to commit the burglary. The Judge referred to the evidence of Ms Benedict about fingerprints, and the explanations that Mr Swainbank had given in the DVD interview about his involvement with winches for fishing boats.
• [25] The Judge referred to the defence submission that the only evidence linking Mr Swainbank to the boat was a single fingerprint which could have been there for a very long time. She noted the submission that the police investigation was inadequate: they “didn’t search the house, they didn’t make inquiries, they didn’t search his person, they didn’t go chasing around pawn shops in the North Shore. They didn’t do a full job ...”.
• [26] The Judge also referred to the back pain that Mr Swainbank was clearly suffering from at the time of the DVD interview, and the uncertainty that created about whether he could get into the boat. She noted that the defence said there could be all sorts of innocent explanations as to how the fingerprint got there: “it’s only one piece of evidence and you can’t rule out an alternative possibility that there’s an innocent reason for Mr Swainbank’s fingerprint coming to the underside of that panel on that boat especially when the expert from the Crown said that fingerprints can be in a position for a long time”.

Grounds of appeal

• [27] Mr Swainbank’s appeal is brought under s 232 of the Criminal Procedure Act 2011. The appeal must be allowed if this Court is satisfied that:

(a) having regard to the evidence, the jury’s verdict was unreasonable; or

(b) a miscarriage of justice has occurred for any reason.

• [28] A jury’s verdict is unreasonable if the jury could not have been reasonably satisfied to the requisite standard that the appellant was guilty.^[3]
• [29] A miscarriage of justice is any error, irregularity, or occurrence in or in relation to or affecting the trial that created a real risk that the outcome of the trial was affected, or that resulted in an unfair trial or a trial that was a nullity.^[4]
• [30] Mr Swainbank’s principal ground of appeal is that the jury’s verdict was unreasonable: they could not have been satisfied to the required standard that he was guilty on the basis of the single thumbprint found on the instrument panel.
• [31] In the alternative, Mr Swainbank submits that there was a miscarriage of justice for the following reasons:

(a) The DVD interview was inadmissible as it resulted from an unlawful arrest.

(b) The trial Judge should have given a direction on Mr Swainbank’s demeanour in the DVD interview.

(c) Trial counsel erred by not leading evidence that Mr Swainbank was not residing at the address at which he was arrested, which was his parents’ address.

(d) Trial counsel erred by failing to call expert evidence in relation to fingerprints.

(e) Trial counsel erred in not requiring Constable Young, the arresting officer, to attend the trial and be cross-examined.

(f) Trial counsel erred in allowing into evidence the s 9 agreement, which did not refer to Mr Swainbank’s medical issues or to his residential address.

Evidence on appeal

Evidence in relation to allegations of trial counsel error

• [32] Mr Swainbank gave evidence about a number of respects in which he was dissatisfied with the way in which his defence was conducted. He was cross-examined on his affidavit. We will refer to his evidence as relevant below.
• [33] Ms Oxnam also gave evidence in relation to the conduct of Mr Swainbank’s defence at trial. She was cross-examined. Ms Oxnam’s evidence was supported by detailed records of the instructions that Mr Swainbank gave in relation to the trial, and his decision not to give evidence. She also explained in some detail the manner in which she discussed the s 9 agreement with Mr Swainbank and obtained his instructions to agree to that agreement. We refer to her evidence where relevant below.

Further evidence from Mr Coyle in relation to fingerprint

• [34] Mr Swainbank sought leave to admit further evidence on appeal: an affidavit from Mr Thomas Coyle, a fingerprint expert and scene of crime specialist.
• [35] The test for whether to admit evidence on appeal is well established. The overriding test is that new evidence should be admitted if the interests of justice require it. The correct approach was summarised by the Privy Council in Lundy v R as follows:^[5]

120. The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.

• [36] The Privy Council observed that the requirement that evidence is fresh can be of less critical importance in cases involving scientific evidence. But the same sequential test should be applied to all species of new evidence, including scientific evidence and evidence that was not led at trial due to error of counsel.^[6]
• [37] Mr Coyle reviewed the evidence linking Mr Swainbank to the burglary. He commented at some length on the process followed to match the thumbprint found at the scene of the crime. However, he accepted that it matched Mr Swainbank’s left thumbprint.
• [38] Mr Coyle said that he would expect that there would be other fingerprints located around the boat, especially within the cabin, either from the owner or another person who may have been on the boat. He emphasised that in his view, it was unlikely that the panel that contained the fish finder on the boat would have been opened with just a thumb, without the support of other fingers. There would generally be:

(a) some indication of finger marks on the inside surface with the thumbprint on the outside area of the panel, which would be consistent with someone pulling the panel away from the fixture; and

(b) prints on the outside surface of the panel. This was especially so because there were no glove marks or other marks noted during the examination.

• [39] Mr Coyle explained that it is impossible to age fingerprints, and that fingerprints can remain for extended periods of time — months or years — in locations where they are undisturbed.
• [40] Mr Coyle considered that it may have been possible for Mr Swainbank to leave his thumbprint on the inside surface of the panel at some time in the past. In cross‑examination Mr Coyle accepted that the presence of the thumbprint was consistent with the hypothesis that it had been placed there during the burglary, but expressed the view that this was a “more unlikely hypothesis” than that it was the result of legitimate contact with the panel, whether on the boat or off the boat.
• [41] In this case, Mr Coyle’s evidence is credible. But it is not fresh. This Court must therefore assess its strength and its potential impact on the safety of the conviction. If there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted. We return to this below.

Was the jury’s verdict unreasonable?

The fingerprint evidence

• [42] We accept the submission of Mr Lucas, counsel for Mr Swainbank, that the only evidence directly linking Mr Swainbank to the burglary was the thumbprint on the inside of the instrument panel. But we consider that it was open to the jury to conclude that the only reasonable explanation for the presence of the thumbprint in that location was that it had been placed there during the burglary, which Mr Swainbank committed.
• [43] Other hypotheses were available. As counsel for Mr Swainbank emphasised in closing at trial, and as the Judge reiterated, it was not possible to say when the fingerprint had been deposited on the inside of the panel. That could have occurred at a much earlier time. But in the DVD interview, Mr Swainbank had ruled out any prior contact with that boat. So the jury needed to consider whether Mr Swainbank’s previous involvement in working with winches might have resulted in contact with the panel at a time when it had been removed from the boat. It was open to the jury to conclude that this was a speculative possibility that did not give rise to a reasonable doubt.
• [44] Mr Lucas submits that it was not incumbent on Mr Swainbank to show why he might have an innocent explanation for his fingerprint on the panel. That would reverse the onus of proof. We agree. But we do not accept his further submission that it was for the Crown to show that the only explanation available would be that he had left his fingerprint when he had taken the fish finder. It was open to the jury to convict Mr Swainbank if they considered that the other available explanations were so speculative and remote that they did not give rise to a reasonable doubt.
• [45] We do not consider that Mr Coyle’s evidence takes matters any further. It was acknowledged at trial that the thumbprint could have been left on the panel at some time in the past, and that there was no way to age the print.
• [46] Nor, in the absence of any reasonable theory about how Mr Swainbank’s thumbprint was placed on the inside of the panel, can any assistance be had from Mr Coyle’s analysis of the difficulty of opening the instrument panel without leaving other fingerprints on the outside of the panel. The short point remains that someone removed the instrument panel without leaving either fingerprints or identifiable glove marks on the outside of the panel. It must therefore have been possible to do so. And the burglar must have done so. That effectively takes matters back full circle to the presence of Mr Swainbank’s thumbprint on the inside of the instrument panel.
• [47] In these circumstances, we consider that Mr Coyle’s evidence adds little or nothing to the evidence at trial. It has no potential impact on the safety of the conviction. There is no risk of a miscarriage of justice if the evidence is excluded.
• [48] We therefore decline to admit Mr Coyle’s evidence.

Other matters relating to the reasonableness of the verdict

• [49] Mr Lucas referred in this context to the Crown’s submission in closing that the appellant was arrested nearby, and the Judge’s comment in her summing-up that Mr Swainbank lived at the address where he was arrested. Mr Lucas says that was incorrect and overstated the case: Mr Swainbank was not living at that address at the time and was linked to it only because it was his parents’ address. He lived elsewhere, an issue explored in more detail below. Mr Lucas submitted that this overstatement may have enhanced the Crown case unfairly.
• [50] We see nothing in this point. The address was plainly one to which Mr Swainbank had access, and at which he was present from time to time. It is in our view immaterial whether Mr Swainbank lived at the address or visited it regularly.
• [51] Mr Lucas also submitted that the Crown’s case against Mr Swainbank was “highly unlikely” having regard to:

(a) the inadequacy of the evidence against Mr Swainbank;

(b) the implausibility of Mr Swainbank leaving just the one thumbprint on the panel but no other marks; and

(c) the absence of any evidence about disposal of the fish finder. The police investigation had been deficient. They had not made any inquiries about the whereabouts of the fish finder or its disposal.

• [52] He submitted that the Crown had not disproved the possibility that Mr Swainbank may have touched the panel at some time in the past when he was associated with the winch business that dealt with Hosking Trailers.
• [53] We consider it was open to the jury to find Mr Swainbank guilty on the basis of the evidence at trial. In particular, it was open to the jury to conclude that the only reasonable explanation available for the presence of Mr Swainbank’s thumbprint on the inside of the instrument panel, having regard to his statements in the DVD interview, was that he had committed the burglary.
• [54] We do not therefore accept the argument that the jury’s verdict was unreasonable.

Was there a miscarriage of justice?

The DVD interview

• [55] Mr Lucas submitted that the DVD interview was inadmissible because it resulted from Constable Young’s arrest of Mr Swainbank, which was unlawful. He submitted that Constable Young did not have power to arrest Mr Swainbank because the fingerprint match did not provide good cause to suspect that Mr Swainbank had committed an offence justifying an arrest.
• [56] In support of this submission, Mr Lucas referred to the police instructions on investigating burglary and allied offences, which set out good practice as to how to investigate such offences. Those instructions outline what a police officer should do when they have a suspect. The instructions suggest that where the police have some evidence, such as a fingerprint hit, the police should enter a “wanted to interview” request into the police computer system. By contrast, the instructions provide that it is only where there is “evidential sufficiency” that a “wanted to arrest” alert can be put into the police computer system. Mr Lucas submitted that it is clear that the police instructions recognise that a fingerprint hit, without more, is insufficient to justify arresting a person for a burglary.
• [57] We do not accept this argument. The police instructions are general guidelines, not a code. They do not deal with every conceivable scenario. Nor do they have the force of law.
• [58] In this case, Mr Swainbank’s thumbprint was found in a location that was not normally exposed: the interior of an instrument panel that was normally screwed shut, but had been opened by the burglar to enable them to access the fish finder. In those circumstances, we consider that Constable Young plainly did have good cause to suspect that Mr Swainbank had committed the burglary. There is no basis for suggesting that the arrest was inconsistent with the guidelines. Still less is there any basis for suggesting that the arrest was unlawful.
• [59] We also accept the submission of Ms Hamill for the Crown that even if the arrest had been unlawful, the interview would be admissible. Mr Swainbank gave the interview willingly, after receipt of advice of his rights under the New Zealand Bill of Rights Act 1990. As the Supreme Court explained in R v Chetty, proof of a causative link between impugned police conduct and the making of a statement “is an essential element of the admissibility inquiry at the threshold stage”.^[7] The arrest provided police with an opportunity to interview the appellant. But the interview was given willingly in circumstances where Mr Swainbank was free to decline to be interviewed, and eventually did decide to decline to be interviewed further.^[8]

Demeanour of Mr Swainbank at interview

• [60] Mr Lucas submits that the Judge should have given a demeanour direction in relation to Mr Swainbank’s demeanour in the DVD interview. He submitted that the jury were obviously interested in his demeanour at that interview, as they had asked a question about whether Mr Swainbank had medical assistance at that time. Mr Lucas invited us to draw the inference that that question was asked because the jury wanted to know whether Mr Swainbank reacted as he did in the interview because of medical issues, or because of a guilty mind.
• [61] The Crown had submitted in closing that Mr Swainbank was lying in his DVD interview. In her summing-up, the Judge referred to Mr Swainbank’s behaviour during the interview when discussing sympathy and prejudice. The Judge gave an orthodox direction on the need to disregard any feelings of sympathy or prejudice. She added, by way of example, the following:

[14] You may also feel prejudiced towards the police, for example, you might think they could have been kinder to Mr Swainbank when he was interviewed. That of course doesn’t help you determine whether or not he committed the burglary that the Crown says he did. You may feel sympathy toward Mr Swainbank because he has back problems and was clearly in distress or pain during his police interview. On the other hand, you may feel prejudice towards Mr Swainbank if you consider he was playing to the gallery a little about his back problems which became particularly acute once the fingerprint evidence was put to him.

• [62] Mr Lucas acknowledged that there is no general rule that a demeanour direction is required. However in this case, he said, where the Crown had suggested that Mr Swainbank was lying and the Judge had referred to Mr Swainbank’s demeanour in the DVD interview, a warning should have been given to the jury that any conclusions that they came to when observing demeanour or body language are likely to be misleading when determining credibility and are better avoided.^[9]
• [63] A demeanour warning is usually given in relation to the manner in which a witness conducts themselves in the witness box (for example: manner, bearing, behaviour, delivery and inflection), and the relevance of that conduct in assessing their credibility and reliability. That issue did not arise in the present case, as Mr Swainbank did not give evidence. But the DVD interview was in evidence and the jury were invited to consider the way in which Mr Swainbank responded to the questions put to him, in particular, when he was advised that his fingerprint had been found inside the instrument panel.
• [64] However, we do not consider that the passage from the Judge’s summing-up set out at [61] above puts in issue Mr Swainbank’s demeanour at the DVD interview. The reference to his response to the fingerprint evidence was made in the context of a warning not to be influenced by prejudice or sympathy. As the Supreme Court said in Taniwha v R, in deciding whether a demeanour warning is required, the key consideration is “whether there is a real risk that witness demeanour will feature illegitimately in the jury’s assessment of witness veracity or reliabil[10]y”.¹⁰
• [65] This was not a case that turned on Mr Swainbank’s demeanour. Rather, the Crown case focussed on the absence of any reasonable alternative explanation for the presence of Mr Swainbank’s fingerprint on the panel. The Crown relied on the content of the remarks made by Mr Swainbank in the interview — in particular, that he had never been on such a boat — rather than his demeanour at that interview. A direction on this point was not necessary.

Trial counsel issues

• [66] Mr Swainbank alleged that trial counsel failed to follow instructions and failed to properly put the defence in a number of respects by:

(a) Not requiring Constable Young to be called as a witness. This meant that Constable Young could not be cross-examined on the circumstances of the arrest, or on the medical issues that became apparent at the interview. Nor could he be cross-examined about the lack of investigation of the explanation given by Mr Swainbank in the interview about how his fingerprint might have ended up on the panel.

(b) Failing to place evidence before the jury about Mr Swainbank’s address at the time of the burglary. Mr Swainbank had provided documentation to Ms Oxnam about where he lived. This material was not before the Court. Mr Lucas submitted that there should have been evidence that his actual residence was in Ruawai, which is far from where the burglary occurred.

(c) Failing to properly put before the jury evidence about Mr Swainbank’s medical issues, which would have assisted the jury in assessing his ability to climb onto the boat to take the fish finder, and his actions during the DVD interview.

• [67] We address each of these in turn.

(a) Failure to call Constable Young

• [68] Mr Swainbank considers that Constable Young should have been called as a witness so that he could be cross-examined. He says he asked Ms Oxnam to ensure Constable Young gave evidence, but she failed to do so.
• [69] We accept Ms Oxnam’s evidence that Mr Swainbank did not tell her that he wanted Constable Young to be called. In any event, Constable Young was not available as he was overseas. The matters that Mr Swainbank says should have been explored with Constable Young were able to be explored with Constable Neves at trial, with reference to Constable Young’s notebook entries and other police records.
• [70] We do not consider that there was any error on the part of Ms Oxnam in failing to call Constable Young. Nor do we consider that the inability to cross‑examine Constable Young was capable of giving rise to a miscarriage of justice.

(b) Mr Swainbank’s place of residence

• [71] As we explained at [50] above, Mr Swainbank’s argument in relation to his place of residence at the time of the burglary had no material bearing on the case before the jury, in circumstances where he had access to, and spent time at, his parents’ North Shore address. We accept that Mr Swainbank lived in Ruawai at the relevant time. But he acknowledges that he visited Auckland for medical treatment from time to time, including in December 2017 when the offending occurred. It was not disputed that the North Shore address was one to which he had regular access.
• [72] Nor for that matter, did the material Mr Swainbank provided to Ms Oxnam establish where he lived at the relevant time. That material showed that the address that he says he was living at belonged to his parents, but shed no light on whether he himself was living there at that time. The jury would not have been assisted by this material, so there was no error in failing to seek to put that material before the jury.
• [73] Mr Swainbank does not suggest that he should have given evidence in order to inform the jury about his place of residence. There is no suggestion that he wished to give evidence and was denied that right through trial counsel error or otherwise.
• [74] Indeed the brief of evidence prepared for Mr Swainbank, against the prospect that he might decide to give evidence, did not refer to his place of residence. We accept Ms Oxnam’s evidence that she did not discuss Mr Swainbank’s address with him at length, and that he did not suggest including it in his brief of evidence.
• [75] The argument that the address information should have been included in the s 9 agreement does not take matters further. Mr Swainbank did not suggest that the address should be dealt with in the s 9 agreement, which was discussed with him before it was finalised. His address was not relevant to the two questions from the jury that prompted the s 9 agreement. And this information could not have been included in the s 9 agreement without the consent of the Crown: it was not within trial counsel’s control.
• [76] Mr Lucas did not explain what else trial counsel should have done to ensure that there was evidence about Mr Swainbank’s address before the jury, in circumstances where he did not choose to give evidence (and there is no complaint about that), and the documents she had been given were not relevant to that question.
• [77] We do not consider that there was any identifiable error on the part of trial counsel in relation to the address issue. Nor was this a material issue, which could give rise to a miscarriage of justice.

(c) Mr Swainbank’s medical condition

• [78] Nor do we consider that there was any miscarriage of justice because the jury did not hear further evidence about Mr Swainbank’s medical condition. Mr Swainbank had briefly explained his medical condition in the DVD interview. Ms Oxnam gave evidence, which we accept, that Mr Swainbank agreed with her that the evidence in the DVD interview, including the statements he made about his medical condition, sufficiently addressed his back injury and its implications for his mobility.
• [79] As noted above, Mr Swainbank did not give evidence and there is no suggestion that he wished to do so and was deprived of his right to do so. Mr Lucas did not identify how evidence about Mr Swainbank’s medical condition was to be adduced, if Mr Swainbank did not give evidence, apart from suggesting that such information could have been included in the s 9 agreement. But that could only have been done with the Crown’s consent. It is difficult to see how the Crown could properly have agreed to include additional information about Mr Swainbank’s medical condition in the s 9 agreement in the absence of any medical report which provided a reliable basis for such information. Nor, for that matter, were we provided with any medical reports or expert evidence suggesting that the position was materially different from that which Mr Swainbank painted at the interview. In particular, there is no suggestion that Mr Swainbank was immobile all or most of the time, or physically incapable at all times of climbing onto the boat. In those circumstances, it is not clear what additional information might properly have been included in the s 9 agreement.
• [80] It was not suggested that there was any error on the part of Ms Oxnam in failing to explore the possibility of calling evidence from a medical specialist. Nor, as noted above, was there any evidence before us to suggest that a medical specialist could have given any evidence that would have added materially to the information before the jury.
• [81] In these circumstances, we are not persuaded that there was any error on the part of trial counsel in connection with evidence about Mr Swainbank’s medical condition, or that the absence of further evidence about Mr Swainbank’s medical condition was capable of causing a miscarriage of justice.

Absence of additional fingerprint evidence at trial

• [82] For the sake of completeness, we note that Mr Swainbank’s notice of appeal complained that trial counsel had not called additional fingerprint evidence to respond to the Crown’s fingerprint evidence. Ms Oxnam had advised Mr Swainbank that PDS was not willing to meet the cost of a fingerprint expert, in circumstances where the match between the fingerprint located on the panel and Mr Swainbank’s fingerprint had been peer reviewed by police fingerprint experts and confirmed by two additional experts as well as Ms Benedict. Ms Oxnam advised Mr Swainbank that he could ask for a private legal aid provider, in which case he might be able to obtain funding for a fingerprint expert or meet the cost himself. He declined to pursue either of these options. Subsequently, Mr Swainbank advised Ms Oxnam that a friend had offered him the funds necessary to pay for a fingerprint expert, but he had decided not to pursue that further.
• [83] In these circumstances, it is clear that the absence of any further fingerprint evidence was a result of Mr Swainbank’s choice, not of anything done or omitted by trial counsel. And in any event, for the same reasons that we have concluded that Mr Coyle’s evidence should not be admitted, we do not consider that there is any additional evidence that a fingerprint expert could have given which would have been material at the trial, in circumstances where it is common ground that the thumbprint on the instrument panel was Mr Swainbank’s.

Summary on miscarriage of justice ground

• [84] For the reasons set out above, we have concluded that the various matters that Mr Swainbank identified as giving rise to a miscarriage of justice did not, either individually or taken together, result in a miscarriage of justice at his trial.

Result

• [85] The application for an extension of time to file the notice of appeal is granted.
• [86] The application for leave to admit Mr Coyle’s affidavit as fresh evidence is declined.
• [87] The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Crimes Act 1961, s 231(1)(a).

^[2] R v Swainbank [2019] NZDC 10341.

^[3] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].

^[4] Criminal Procedure Act 2011, s 232(4).

^[5] Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

^[6] At [121]–[126].

^[7] R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 at [46]–[47], quoting Boskell v R [2014] NZCA 497 at [9].

^[8] See also Winders v R [2016] NZCA 350 at [48]–[58].

^[9] Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116 at [46].

^[10] At [43].