PINK v R [2022] NZCA 306

PINK v R [2022] NZCA 306 [12 July 2022]NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OFNAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARSOF WITNESSES MS K AND MS R, PURSUANT TO S 202 OF THECRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA71/2021[2022] NZCA 306BETWEEN ALLAN JAMES PINKAppellantAND THE QUEENRespondentHearing: 2 May 2022Court: French, Venning and Moore JJCounsel: N P Chisnall and L A Elborough for AppellantS C Baker for RespondentJudgment: 12 July 2022 at 10.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Pink was convicted of wounding with intent to cause grievous bodily harm1following a jury trial in the District Court.2[2] The presiding Judge, Judge Spear, sentenced Mr Pink to a term ofimprisonment of seven years and four months.3[3] Mr Pink now appeals both his conviction and sentence.Background[4] In the early afternoon of 8 August 2018, a Mr Coker was subjected to a viciousattack by a group of men in the main street of Ngāruawāhia. He was knocked to theground, punched and kicked and hit with a claw hammer and an axe. He sustainedvery serious injuries to both his knees and left ankle requiring surgery. There was acompound fracture of the ankle while the wounds on the knees were found to haveextended down to the bone. In the case of the right knee the wound went down as faras the patellar tendon and into the knee joint. He also received a fracture to his rightthumb.[5] Mr Coker was a patched member of the Tribal Huk gang. There was a conflictin the evidence whether all of the men who attacked him were also gang members butit was common ground that at least some were. According to the Crown, Mr Cokerwas being punished because he had gone rogue and was refusing to return his gangpatch.[6] The appellant Mr Pink has been the President of the Tribal Huks for twentyyears. He has a very high profile in the local community and has attracted nationwidepublicity. This has been due in part to his leadership of a gang programme providinglunches for under privileged school children as well as a campaign to runmethamphetamine dealers out of Ngāruawāhia. The Crown alleged that Mr Pink1 Crimes Act 1961, s 188(1).2 Mr Pink had also been charged with participating in an organised criminal group under s 98A ofthe Crimes Act but the Judge removed that charge from the jury prior to his summing up.3 R v Pink [2020] NZDC 26021 at [30] [Sentencing notes].participated in the attack on Mr Coker, and that his participation included attackingMr Coker's legs with the blunt end of a long handled axe while Mr Coker lay on theground.The trial[7] The trial commenced on 14 September 2020. The evidence concluded on15 September, with closing addresses and the Judge's summing up on 16 September2020. The jury returned its verdict the same day 16 September.[8] It was common ground that Mr Pink was present at the scene of the attack. Themain trial issue was whether he had assaulted Mr Coker with a weapon.[9] In support of its allegations, the Crown adduced evidence of CCTV footageshowing a convoy of three vehicles heading to the main street prior to the attack. Thelead vehicle was a distinctive black ute belonging to Mr Pink and well known locally.The same vehicle was parked on the main street facing Mr Coker's parked vehicle atthe time of the attack. After the attack as the black ute left the scene, occupants ofother vehicles were seen saluting it.[10] Mr Coker himself did not give evidence. The attack was however witnessedby a number of passers-by whose evidence was generally to the effect that the assaultbegan in the gap between the two vehicles on or near the footpath. The Crown invitedthe jury to infer that the black ute had been parked facing the wrong way so as to blockoff Mr Coker's car and prevent him from escaping. There was also evidence ofMr Coker's own car — a red vehicle — being smashed.[11] Three of the civilian witnesses called by the Crown said they knew Mr Pinkand saw him at the scene. One saw him standing on the footpath, the other two amother and daughter said they saw him swinging an axe and bringing it down usingthe blunt end on the man lying on the ground. The evidence of the mother and daughter— a Ms K and a Ms R — is at the centre of the appeal and we address their evidencein more detail later in the judgment.[12] In addition to the evidence of bystanders, evidence was adduced of two out ofcourt statements made by Mr Pink in interviews with police officers.[13] The first interview took place about a month after the attack on 13 September2018. The officer had arranged to meet Mr Pink at a bar the latter frequented. Undercaution, Mr Pink told the officer several times that he had not been in Ngāruawāhia onthe day of the attack. The officer recorded Mr Pink's statements in a notebook and atthe end of the interview gave Mr Pink an opportunity to read what he had writtendown, read it out to him and asked Mr Pink to sign it as true and correct which Mr Pinkdid.[14] The second interview took place on 6 December 2018 following a warrantedsearch of Mr Pink's black ute and the discovery of a gang patch, a hammer and an axe.Mr Pink was arrested and underwent a videoed interview at the police station. Wepause here to interpolate there was no forensic evidence linking either the hammer orthe axe to the attack.[15] During the second interview, Mr Pink told police he was in town on the day ofthe attack having a coffee and sandwich at a local café. He heard a commotion andwent out to investigate. He saw a large number of people milling around but whateverhad happened was ending and people were leaving. He didn't see the attack and didn'trecognise anyone. Police and ambulance were arriving and so he left too in his utewhich he had parked by an old garage. He only found out about the attack thefollowing day. The patch was given to him later when the others retrieved it fromMr Coker's car a few days later. Police had however searched Mr Coker's car the dayof the incident and had not seen any patch.[16] Mr Pink confirmed he was driving his truck that day. He also said he was notthe only person who drives the vehicle. It was a club vehicle and he leaves the keysin the truck. When told about the CCTV footage of the convoy, he said it was not himdriving the vehicle and denied being responsible for parking it on the main street.[17] He described the people who claimed to have seen him swinging the axe downonto Mr Coker as "dreaming". He didn't know who had ordered the attack onMr Coker but said a lot of people — not just gang members — were angry withMr Coker. He himself was also angry with Mr Coker and had been trying to de-patchhim for two years because Mr Coker was using methamphetamine and making theclub "look real bad".4 Mr Coker was, Mr Pink said, out of control. Mr Pink also toldthe officer that the usual penalty for not handing in your patch is a broken jaw.[18] When asked about his previous statements to the police officer at the bar,Mr Pink vehemently denied ever telling the officer he was not in town on the day ofthe attack.[19] Mr Pink gave evidence at the trial and also called a witness. That he would begiving evidence had been signalled to the jury by defence counsel in his openingaddress. Defence counsel told the jury that at no stage did Mr Pink use an axe. Allthat was meant to happen was the removal of the patch but others went too far. It wasMr Pink who stopped the attack and prevented it from going any further.[20] In his evidence Mr Pink said that Mr Coker was like a son to him and althoughhe wanted his patch back, he did not want to harm him.[21] Mr Pink testified that on the day of the attack he was in a nearby café. Therewere a lot of angry people around looking for Mr Coker. Someone took Mr Pink'struck and they all rushed off. He asked them what were they doing and where theywere going but had lost control. By the time he got there on foot, Mr Coker wasgetting really bashed up and someone was already hammering him with a clawhammer. Mr Pink said he knew he had to stop it. He took an axe off someone andjust threw it onto the ground. That put an end to the attack. He did not know whathappened to the axe after that.[22] Mr Pink did not identify the person who had been using the axe. Nor did hesay what the person had been doing with the axe.4 Mr Pink later testified that Mr Coker was jeopardising the gang's "sandwich in schools"programme.[23] Mr Pink also testified that on arrival at the scene, Mr Coker's car was alreadydamaged but that more damage was done after he had arrived. He estimated that hewas only there for 30 or 40 seconds. He retrieved his truck and returned to Hamilton.He said he was annoyed that someone had taken his truck.[24] As for the witnesses who saw him using the axe to attack Mr Coker, Mr Pinksuggested in cross-examination that they only had a split second and could easily havemistaken his grabbing of the axe for him wielding it and using it.[25] When asked about his previous statements to police, he said the first interviewin the bar should never have taken place there. It was noisy and he couldn't hear. Heonly signed the notebook entries to hurry things along and to be helpful. Heacknowledged he had never told the officer that he had stopped the attack but said hewould have done so had the interview taken place at a police station. He had nothowever mentioned confiscating the axe during the evidential interview at the policestation either but would have done so had the right questions been asked.[26] Mr Pink further claimed that his previous statement about driving away in histruck which had been parked around the corner rather than on the main street was amisinterpretation.[27] He was also questioned about the route he had taken from the café to the sceneof the attack, it being put to him that it was not the most obvious route and that unlikethe obvious route it did not have CCTV cameras that would have been able to capturehim walking or running that way if his story were true. Mr Pink disputed this andwhile acknowledging that his chosen route involved him climbing a six foot high fencesaid the route he took was the fastest route.[28] Evidence was also given for the defence by a Ms Morgan. She was driving hercar down the main street at the time of the attack and looked to see if she could seeMr Pink whom she knew. She told the jury that she saw him coming up behind aMāori guy and removing a bat from him. She confirmed she was familiar withMr Pink's black ute but didn't recall seeing it there. She did recall seeing Mr Coker'sred car but there was nothing about it that stood out in her mind. At the time she drovepast, Mr Coker was standing up surrounded by a group of men. That was when shesaw that somebody had a stick or bat in their hand.[29] The jury found Mr Pink guilty of wounding with intent to cause grievousbodily harm.Grounds of appeal against conviction[30] In support of the appeal, counsel Mr Chisnall advanced two main grounds ofappeal:5(a) inadequacies in the Judge's direction on identification under s 126 ofthe Evidence Act 2006 (the Act) and his treatment of the identificationevidence generally; and(b) the Judge's failure to give a lies direction under s 124 of the Act.The Identification Evidence[31] The focus of this ground of appeal was on the evidence of the mother anddaughter, Ms K and Ms R.Ms K's evidence[32] Prior to trial, Ms K took part on 6 September 2018 in a formal identificationprocedure under s 45 of the Act. She identified Mr Pink from a photo montage as theperson she saw swinging the axe during the bashing.[33] At trial, Ms K said she and her daughter were in a car driving down the mainstreet when they saw "heaps" of Tribal Huks in town and a man getting beaten on thefootpath by five men. She was driving and said that because the car in front of themhad slowed right down to see what was happening, she too slowed down, "just aboutstopp[ed]". Of the five attackers, she only recognised one and that was Mr Pink. She5 A third ground advanced in written submissions that one of the identification witnesses Ms Rshould not have been declared hostile was not pursued at the hearing.knew him because of the sandwiches in school programme and from seeing him onTV.[34] She saw him smashing a wood splitter down on the man's legs. Mr Pink wasswinging it above his head and then down using the blunt end. She saw him to do thatmore than once, "easily" twice.[35] In cross-examination, Ms K said she was very sure it was Mr Pink. He stoodout with his blond hair. He was facing the road and definitely not taking the axe offsomeone else. She said although her car never came to a complete stop, it was longenough to know what she saw. It was a clear sunny day and she had a good view. Sherejected the suggestion that she had just seen Mr Pink and so assumed he was involved.When asked what the other men were doing when she saw Mr Pink wielding the axe,she said mostly just standing. She agreed that she did not actually see the wood splitterhit Mr Coker's legs but that was the direction of the axe and given the injuries to MrCoker which she later saw when they got out of the car to see if he needed help, it wasobvious that was where it had hit. She described his legs as distorted.Ms R's evidence[36] On 22 August 2018, Ms R made a formal statement to police.[37] Because the statement assumed some importance at trial and this appeal, it isnecessary to set out the statement in full:On Wednesday the 08th of August 2018, I was in the passenger side of mymums car we were heading toward Te ranga whawai marae on great southroad ngaruawhaia [sic].I looked out of the window I saw a commotion on the side of the road near theold Pharo's by the indian restaurant.I saw a person I recognised as Pinky I know him as I did PD with him 4–5years ago I also know him also as he delivers sandwiches to my kids school.He had an axe in his hand he rose it above his head and he was slamming itdown. I saw he was hitting someone on the ground with it, he was using theblunt end not the sharp. I didn't recognise anyone else but there were 4–5others involved all of them had gang patches on they were all yellow in colourand I recognise them as tribal huks patches.I could see pinkys ute it was parked on the side of the road directly where thiswas happening it is black although I don't know the rego it is a double cab.Pinky also had his tribal huks patch on.I had a clear view of what was happening as it was about 1230 hrs orsomething we had just had lunch at the local bakery it was broad daylight andthe weather was fine.I rung the police I couldn't believe what I was seeing I rang 111 on my phone. . My mum drove to the police station as I also wanted to report what I hadseen, I had already told the call taker from the 111 line what I saw.I couldn't find anyone at the police station we saw pinky driving his ute onthe road towards the Police station so I got mum to park up and I ran down towhere I saw the guy getting beaten up.I spoke to him he said his name was Zion.He had injuries to his hands and his legs and his face was all swollen.I saw a car on the road side it was a ford falcon it was all smashed up. I askedhim if he was ok.Zion would say what had happened but he couldn't move.When the incident first happened I saw a second person who I didn't recogniseusing a sledge hammer rising it above his head and bringing it down I don'tknow who that person is and I could not see the impact.I was shocked at what I saw right in the middle of the day on the main road.I was wearing a black ridge line top. That day I was wearing a red purple andblack beanie.This is the first time I have spoken to a police person about this.I have checked my phone log and I rang the police on the 08.08.2018 it wasat 1240 pm.I confirm the truth and accuracy of this statement. I make the statement withthe knowledge that it is to be used in court proceedings. I am aware that it isan offence to make a statement that is known by me to be false or intended byme to mislead.[38] At the trial, from the outset of her evidence in chief, Ms R claimed to have nomemory of the incident. When shown her statement to refresh her memory, shedeclined to read it saying she didn't want to re-live it. She was stood down, while inthe absence of the jury the Crown made an application to have her declared hostile.There was discussion with counsel in chambers. Defence counsel submitted it waspremature to declare her hostile and submitted the starting point would be for the Judgeto himself ask her to read her statement to refresh her memory. The Judge agreed todo that and when court resumed the Judge made that request asking her to do it "forme please" but again Ms R refused. The Judge then gave the prosecutor leave to cross-examine her.[39] Then followed a series of leading questions. Ms R remained un-cooperative.When responding to questions by saying she didn't remember, she was referred to herstatement and the relevant extract read out. At several points she claimed not to beable to see the words that were being read out. She was then stood down again andother witnesses were interposed.[40] The trial record shows that the Judge told Ms R in the absence of the jury thathe did not believe she was telling the truth when she said she could not read thestatement. He stood her down in custody and directed the Registrar to arrange for theduty solicitor to see her and explain her position. She was seen by both the dutysolicitor and at the Judge's request a senior lawyer in charge of the duty solicitors.Subsequently the Judge confirmed with Ms R that she understood the requirement togive evidence and that she was prepared to continue.[41] When Ms R's evidence resumed, the prosecutor took her through the keyaspects of her formal statement regarding her recognition of "Pinky" as one of theattackers and his use of the axe. She confirmed that was what the statement said. Andthen she confirmed independently of the statement that it was correct that what shesaw was Pinky using an axe on somebody who was lying on the ground.[42] During questioning by defence counsel, she denied that she had to look pasther mother to see the other side of the road. She said she could see what was happeningfrom the front view of the car. She also denied they only got a brief look at the assaultthat was happening. She accepted they were driving at some speed but the period oftime that they looked was more than seconds. She could not remember the numbersof men involved, nor the two parked cars, nor which way the person she described asPinky was facing, nor was she able to remember whether she could be mistaken now.She agreed she had talked to her mother on the way home. At one point of thecross-examination she also claimed that at the time the statement was taken she wasdrunk.[43] In re-examination, she confirmed parts of her statement relating to the fact shehad a clear view of what was happening, that it was broad daylight and the weatherwas fine, she rang the police as she could not believe what she was seeing and wantedto report what she had seen. Contrary to her formal statement and what she had saidto defence counsel she said she had a brief view and that it was "not really" clear. Shealso stated that she had got out of the car and saw the injuries to the man who had beenassaulted as well as seeing a red car that was all smashed up.Was the Judge required to give an identification warning?Discussion[44] Section 126 of the Act provides that in a criminal jury trial where the caseagainst the defendant "depends wholly or substantially on the correctness of 1 or morevisual or voice identifications of the defendant", the judge must warn the jury of thespecial need for caution before finding the defendant guilty in reliance on thecorrectness of any such identification. The section then goes on to prescribe thecontents of the warning.[45] As noted in Fukofuka, the section has its origins in a 1977 judgment of theEnglish Court of Appeal R v Turnbull. Its wording is taken almost verbatim from amodel direction contained in that case. The English Court considered a direction wasrequired because of the number of cases in which mistaken identification evidence hadled to wrongful convictions and there was a pressing need to reduce those numbers. 6[46] It is an error of law to fail to give a s 126 warning and such an error maynecessitate a retrial.[47] In the present case, the Judge did give an identification warning, the sufficiencyof which is contested. But there is also a prior argument as to whether it was even6 Fukofuka v R [2013] NZSC 77, [2014] 1 NZLR 1 at [25]–[29], citing R v Turnbull [1977] QB 224(CA) at 228.needed in the first place. The Crown argues that in the particular circumstances of thiscase, s 126 was not engaged. Mr Chisnall for the appellant argues otherwise.[48] Usually when lay people think of identification evidence, they think of thesituation where the witness does not know the person they see but after viewing aphoto montage selects the defendant as being that person. Identification evidencehowever also includes what is called "recognition evidence", that is to say the evidenceof a witness who identifies the defendant as the person they saw because they alreadyknow him or her through prior acquaintance. It is well established that recognitionevidence is a form of visual identification evidence for the purposes of s 126 andrequires a warning even although such evidence may be more reliable than if thewitness and the defendant were strangers.7[49] Less straightforward are cases like the present one where the defendant admitsto being present with others at the scene of the crime but denies any personalwrongdoing. The difficulty arises primarily because the phrase "visual identificationevidence" which appears in s 126 is defined in the Act as:8(a) an assertion by a person, based wholly or partly on what that personsaw, to the effect that a defendant was present at or near a place wherean act constituting direct or circumstantial evidence of thecommission of an offence was done at, or about, the time the act wasdone; or(b) an account (whether oral or in writing) of an assertion of the kinddescribed in paragraph (a)[50] In a 2009 decision R v Turaki, this Court held that where a defendant admittedbeing at the scene of a crime, a s 126 warning was not required. It said:9Where the accused accepts that he or she was present at or near the scene ofthe offending and the only issue in the trial is whether or not the accusedparticipated in the offence, then identification will not be an issue at trial. Itwill only be the observation evidence of the witness (of the alleged actions ofthe accused) that is challenged.7 Uasi v R [2009] NZCA 236, [2010] 1 NZLR 733 at [20]–[25]; R v Turaki [2009] NZCA 310 at[62] and [87]–[88]; and Old v R [2015] NZCA 252 at [27].8 Evidence Act 2006, s 4(1).9 R v Turaki, above n 7, at [93]. See also R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762 at[42]–[44].[51] Two months after the Turaki judgment was delivered, another division of thisCourt declined to follow it. It was held in Peato v R that an overdue focus on thestatutory definition of visual identification evidence had led the earlier Court into errorand that its conclusions were contrary to earlier authority and the underlying purposeof s 126.10[52] In the view of the Peato Court, the definition of visual identification evidencehad to be interpreted and applied in context, context meaning the purpose and policyof the legislation, its history and the consequences of a suggested interpretation.11Whether s 126 was engaged should not depend on the classification of evidence aseither identification or observation evidence. The key issue was whether the defencerested on the possibility of a mistake.12[53] Like the present case, Peato involved a group attack. The defendant wasaccused of attacking the complainant with a bottle. He admitted being present. Healso admitted to punching the complainant but denied ever using a bottle. Twowitnesses claimed to have seen the bottle attack and identified the perpetrator as thedefendant. The Court considered that the risk of mistaken evidence identifying thedefendant as the perpetrator was just as real as it would be if the defendant had notmade the admission of being there.13[54] Subsequently, in a 2010 decision in E (CA113/2009) v R (No 2), the Courtattempted to reconcile the apparent conflict between Turaki and Peato. It held thatcorrectly understood the Turaki decision was not authority for the absolute propositionthat identification can never be an issue when the accused accepts he or she waspresent. The question was said to be whether identification was in issue or merely theactions of the defendant.14[55] The Court illustrated the distinction it was drawing by making reference to thetwo sexual offending charges under consideration. Both incidents were alleged to10 Peato v R [2009] NZCA 333, [2010] 1 NZLR 788, at [17]–[23] and [43].11 At [29].12 At [22]–[23] and [35]–[36].13 At [35].14 E (CA113/2009) v R (No 2) [2010] NZCA 280 at [63]–[65].have taken place at a gathering where it was common ground there were several malespresent including the defendant. In one charge, identification was considered at issuebecause it could have been someone else. In the other charge the defendant admittedmeeting the complainant at the toilet, hugging her and both falling over but denied anysexual intercourse took place. In those circumstances, it was held no identificationwarning was necessary.15[56] This Court had occasion to consider the issue again in 2011 in Witehira v R andagreed with the approach taken in E (CA113/2019) v R (No 2).16 Witehira concernedan alleged robbery. The complainant said there were three men present but only twoof them carried out the robbery. The complainant alleged that the appellant was oneof the two.[57] The appellant did not dispute being present but contended that no robbery atall had taken place and that the complainant's story of a robbery was a fabrication. Inlight of that defence, the Crown argued that a s 126 warning was not required. Theappellant was disputing evidence about his conduct, not on the basis the identificationwas mistaken or unreliable but on the basis it was a fabrication.[58] It appears the Court would have accepted that submission but for the fact thatalthough not part of the defence closing and opening, cross-examination of thecomplainant did lead the Judge and the prosecutor to apprehend that identification wasan issue if they rejected his evidence no robbery had occurred. Once the jury decideda robbery had taken place, identification as the appellant as one of the two robbers wasa live issue. A warning was thus required.17[59] Drawing all these threads together. In our view, it can be safely concludedfrom the authorities that there is no bright line distinction between visual identificationevidence in the strict sense and observation evidence. That is to say, it is wrong tosuggest that an identification warning is only required when the defendant deniesbeing at the scene. A warning may still be required where the defendant admits being15 At [66]–[68].16 Witehira v R [2011] NZCA 658 at [47].17 At [38] and [47].present and it is a live issue as to whether he or someone else present was theperpetrator.[60] Turning then to the circumstances of this case. As will be apparent, it has somesimilarities with the facts in Peato with one potentially important distinction. Thedefendant in Peato never admitted holding the weapon, in that case a bottle.[61] Mr Pink claimed in evidence he was only present at the scene for thirty or fortyseconds. It was during that time that he held the axe. He only held the axe once. Onthat basis, it follows that if the two witnesses saw him holding the axe their onlymistake was not as to his identity but as to his actions with the axe. Mr Pink expresslysuggested that himself in evidence.[62] If matters rested there, then we consider there is a very strong argument forsaying no identification warning was required. However, rather like the situation inWitehira, there was also the possibility advanced implicitly by defence counsel incross-examination and in closing that the two women may have come on the scenebefore Mr Pink confiscated the axe and seen someone else using it.[63] We therefore conclude that s 126 was engaged.Did the warning that was given comply with s 126?[64] As mentioned, the contents of the warning are regulated by s 126(2). It states:(2) The warning need not be in any particular words but must—(a) warn the jury that a mistaken identification can result in aserious miscarriage of justice; and(b) alert the jury to the possibility that a mistaken witness may beconvincing; and(c) where there is more than 1 identification witness, refer to thepossibility that all of them may be mistaken.[65] In addition to these statutory requirements, it is also recognised as best practicefor the trial judge to sum up on the strengths and weaknesses of the identificationevidence.18The direction given in this case[66] What the Judge said to the jury was as follows:The issue of identification is raised by the defence and quite rightly so becausethis is a case that relies to some degree on identification evidence. Theevidence primarily against the defendant is from Ms [R] and Mrs [K], hermother, identifying they say Pinky, the defendant, as the person who was"laying into" Zion Coker with an axe. So it is their evidence that it was thedefendant and they referred to him as Pinky. When a case depends upon thecorrect identification of another person, I am required to tell you that you needto exercise special care before relying upon that identification evidencebecause case after case tells us that mistakes can be made with identification.You may well yourself have experienced situations where you're quite certainyou've seen somebody you know but when you get closer, you suddenlyrealise that it is not the person you thought it was.So what is very important is that you exercise special care when you come toconsider the evidence of both Ms [R] and her mother Mrs [K] because it wouldbe of course quite wrong for you simply to say: "Well they identify Pinky,they've got it right." You must be left sure that they've got it right, that there isno room for mistake. In this respect, the Crown says you have two of themwho both identified a person who's very prominent in the Ngāruawāhiacommunity, a person who is prominent because of the Sandwiches in Schoolsprogramme that runs, that he fronts, that he has even been on nationaltelevision about. Ms [R] said they provide sandwiches to the school that herchildren go to.Mr Boot says well they talked about somebody with blond hair. There weredifferent accounts as to whether he was facing them or facing away, that theywere over the other side of the road in a car travelling along the road, so theywould have only had a brief glimpse at the person involved in the attack onMr Coker. How can you be left sure that they have correctly identified theperson wielding the axe being the defendant? It's a matter entirely for you butI ask you to exercise special care when relying upon identification evidenceof this nature.Analysis[67] Mr Chisnall submits the direction given by the Judge was deficient in severalrespects. It failed to comply with all three statutory requirements and contrary to bestpractice the Judge did not himself identify the strengths and weaknesses of the18 Fukofuka v R, above n 6, at [27] and [35].evidence. Instead he just summarised counsel's arguments. Even then, Mr Chisnallsays, there were notable omissions as a result of which the Judge over-stated thestrength of the identification evidence.[68] Turning then to the first statutory requirement — must warn that a mistakenidentification can result in a serious miscarriage of justice — we acknowledge thatnowhere in the direction does the Judge use the phrase "serious miscarriage of justice".[69] However, the section also provides that the warning need not be in anyparticular words. If one examines the words the Judge did use, then we consider thatwhat was conveyed was that the jury needed to exercise special care when relying onthe identification evidence, that mistakes can be made with identification, thatmistakes have actually been made in many cases ("case after case") where the casedepended as this one does on the correct identification of another person. A mistakemade about identification in a case that depended on the correctness of thatidentification can only mean a wrongful conviction and would be so understood bythe jury. It would have been very clear that as required by the authorities the Judgewas telling the jury that mistakes leading to wrongful convictions were not just atheoretical possibility but had actually happened.[70] We are therefore not persuaded that omission of the phrase "seriousmiscarriage of justice" means the direction did not comply with s 126(2)(a).[71] The second requirement under s 126(2) is that the jury be alerted to thepossibility that a mistaken witness may be convincing. The Judge did not say that tothe jury in so many words. But he did say that as they know from their own experience,it is possible to be quite certain that you have seen somebody you know only todiscover that as you get closer it is not the person you thought it was. That commentwas made of course in the context of a case where the two identification witnesseswere not up close to the man they said they recognised. In the factual context of thecase, we consider the jury were alerted that even if Ms K and Ms R were convincing,there was still the possibility of a mistake.[72] The third requirement of s 126(2) is that in a case where there is more than oneidentification witness, the Judge must refer to the possibility that all of them may bemistaken. In this case there were of course two identification witnesses. Again, theJudge did not use the exact words in the section, but he did tell the jury that they mustexercise special care when they came to consider the evidence of both mother anddaughter and that it would be quite wrong for them to say "[w]ell they identify Pinky,they've got it right".19 He again referred to the witnesses in the plural when he wenton to say that the jury must be left sure the two witnesses got it right, that there is noroom for mistake.[73] We are satisfied that the Judge's direction complied with the essence of therequirement in s 126(2)(c).[74] Finally there is the criticism that the Judge did not himself identify thestrengths and weaknesses of the identification evidence. He simply summarised thecompeting submissions from the lawyers regarding the quality of the evidence.However, in Fukofuka, the Supreme Court said if done succinctly and in an orderlyway, that approach may suffice.20[75] The Supreme Court found that the paraphrasing by the Judge in Fukofuka wasneither succinct nor orderly because he did not deal with the competing argumentstogether. Instead he interposed a discussion about the appellant's evidence betweenhis review of the Crown and defence submissions as to its identification. This wasdistracting because it interrupted what should have been a coherent analysis of thequality of the identification evidence. There was also the conflation of two differentdiscussions.21[76] In contrast in this case, the Judge did deal with the competing arguments onidentification together and they immediately followed his emphatic instructions aboutthe need to take special care and the reasons why. The summary was succinct. Therewere no factual errors and it captured the key points. It did not traverse every point19 Emphasis added.20 Fukofuka v R, above n 6, at [35].21 At [35].that had been made but criticism on that score needs to be tempered with the fact thiswas a short trial and all of the evidence would have been very fresh in the minds ofthe jury.[77] It should also be noted that the Judge returned to the question of identificationin the course of a general summary of the Crown and defence cases. In relation to theCrown case, the Judge said it was as follows: he was identified by mother and daughter, both adults, and they had nodifficulty at all saying that it was Pinky, the man they know as Pinky, who theysaw involved in the attack on Coker swinging an axe, or as Mrs K put it, awood splitter, using the back edge of the axe head hitting down onto Coker.That this was an attack that so horrified Mrs K and her daughter that theydrove straight around to the police station. As I've explained, when dealingwith identification, they were in no doubt at all that the person they sawwielding the axe on Coker was the defendant Pinky.[78] And in relation to the defence case:[Defence counsel] took issue with the identification of the defendant as theman beating up Coker from mother and daughter across the other side of theroad, that they only had at best a fleeting glimpse of what was happening andtheir knowledge of him was not someone whom they had dealt withthemselves but just someone they knew of around the community fromdifferent publicity. [Defence counsel] contended that you cannot be left surethat it was the defendant who was wielding the axe [79] In contending that the Judge over-stated the strength of the Crown'sidentification evidence, Mr Chisnall was particularly critical of the Judge's failure todistinguish between the evidence of Ms K and Ms R. In Mr Chisnall's submission theJudge should have directed the jury about the inherent difficulties in Ms R's evidenceand also directed them not to speculate about the reason for her reluctance to giveevidence. Instead the Judge treated the two witnesses uniformly and wrongly claimedin the passage quoted above that they were both in no doubt at all. Mr Chisnall evenwent so far as to say Ms R should have been treated as a witness who was unavailableand her evidence excluded under s 8 of the Act applying the principles in Morgan.22This was he said a situation where her hostility meant there was no opportunity forrealistic cross-examination.22 Morgan v R [2010] NZSC 23, [2010] 2 NZLR 508 at [39]–[42].[80] In our view, the problems with Ms R's testimony and the fact she did not wantto be giving evidence were plain for the jury to see for themselves and would havebeen very memorable. We are not persuaded that any useful purpose would have beenserved by a judicial direction including a direction not to speculate about the reasonfor her reluctance. Both parties had chosen not to address that issue, no doubt becauseit suited their respective purposes.[81] The Crown did not dwell on Ms R's conduct in the courtroom. All that wassaid was that Ms R was "reluctant to even say Mr Pink's name as it appeared in herstatement. She did not want to be here but on the day she was moved to report whatshe saw".[82] For the defence, the cross-examination was difficult but not impossible andanswers were extracted that defence counsel was able to highlight in closing as castingdoubt on the reliability of the identification evidence.[83] In our view, exclusion of Ms R's evidence would have been quite wrong,particularly in circumstances where the defendant himself admitted he had held theaxe. Apart from saying she was drunk, she did not ever resile from her formalstatement and the key allegation that she recognised Mr Pink as the person using theaxe as a weapon. In these circumstances, contrary to a further submission, we do notconsider that a discrete reliability warning under s 122 of the Act was necessary.[84] To summarise, our conclusions on this ground of appeal are that:(a) a s 126 warning was required;(b) the warning given was sufficient;(c) exclusion of Ms R's evidence would not have been justified; and(d) the Judge did not err in failing to direct the jury about Ms R's hostilityin the witness box.The failure to give a lies direction[85] This part of Mr Pink's appeal was argued by Mr Elborough.[86] As mentioned, the Crown adduced evidence of two out of court statementsmade by Mr Pink to police. The inconsistencies between the two statements and theinconsistences between the statements and Mr Pink's evidence were highlighted bythe Crown in closing. The prosecutor suggested that Mr Pink had lied in his statementsand in his evidence and was offering ludicrous explanations for the variousinconsistencies.[87] In those circumstances, Mr Elborough submitted a lies warning under s 124 ofthe Act should have been given. He further submitted that the failure to give one hascreated the risk of a miscarriage.[88] Section 124 of the Act relevantly provides:(2) If evidence of a defendant's lie is offered in a criminal proceedingtried with a jury, the Judge is not obliged to give a specific directionas to what inference the jury may draw from that evidence.(3) Despite subsection (2), if, in a criminal proceeding tried with a jury,the Judge is of the opinion that the jury may place undue weight onevidence of a defendant's lie, or if the defendant so requests, the Judgemust warn the jury that—(a) the jury must be satisfied before using the evidence that thedefendant did lie; and(b) people lie for various reasons; and(c) the jury should not necessarily conclude that, just because thedefendant lied, the defendant is guilty of the offence for whichthe defendant is being tried.[89] There is no doubt that in this case evidence was offered suggesting thatMr Pink had lied.[90] However, as s 124 makes clear, there is no requirement to give a lies directionunless the defendant requests a direction or the Judge is of the opinion that the jurymay place undue weight on the evidence of a lie. If either of those two circumstancesapplies, then a warning in terms of s 124(3) is mandatory.[91] It is common ground that Mr Pink's trial counsel did not request a liesdirection. Although Mr Elborough submitted that "if ever a case called for a liesdirection, it was this one", the appeal was not argued as trial counsel error. It istherefore reasonable to assume that trial counsel held a different view regarding thebenefit of such a direction to the defence. In this regard it is noteworthy that defencecounsel's closing address did not mention the out of court statements, no doubtconcerned to downplay their significance. To have them highlighted by the Judge ina direction may have been considered counterproductive.[92] A factor which is also likely to have influenced trial counsel to adopt that viewis that the Crown did not in fact at any stage invite the jury to treat the out of court liesas evidencing a consciousness of guilt. That is to say, the Crown did not suggest thelies were probative of guilt, something it would have been entitled to do. Rather, thesubmission was that the jury should treat all of Mr Pink's exculpatory accountsincluding those made out of court as lacking credibility and put them aside and insteadfocus on the other evidence. In effect the Crown bundled the out of court statementsinto the standard tripartite direction regarding a defendant's testimony, a directionwhich the Judge gave. The Judge also reiterated this was the Crown's approach whensumming up the respective cases.[93] Given the Crown's approach, it is hardly surprising the Judge did not give alies warning. The risk of the jury placing undue weight on the evidence of the lies andthereby drawing inferences that were not warranted was low because the Crown hadadvised the jury it did not want them to put any weight at all on that evidence but toignore it completely. For the Judge to then give a direction about using the evidencein assessing guilt would likely have been detrimental to the defence.[94] Even if we are wrong on that, we would also point out that this was only a threeday trial. Mr Pink had provided explanations for his out of court statements and deniedever lying. He said he had never made the statements attributed to him at the pub buthad been misheard and his account at the police station was a product of thequestioning. In those circumstances it would have been obvious to the jury that beforeusing the evidence, they had to first reject those explanations. They had also beeninstructed the case largely turned on their assessment of the identification evidence,something which also reduced the risk of them putting undue weight on the evidenceof lies.[95] For all those reasons we reject the submission it was an error for the Judge notto give a lies warning.Outcome of the appeal against conviction[96] We are satisfied that neither of the two grounds of appeal has merit. The appealagainst conviction is dismissed.The appeal against sentenceThe sentencing in the District Court[97] As the Judge recognised, sentencing for grievous bodily harm offending isgoverned by this Court's guidelines decision in R v Taueki.23 The central issue in theappeal is how the Judge applied Taueki to Mr Pink's offending and accordingly it isnecessary first to provide a brief summary of Taueki itself.[98] In Taueki, this Court identified 14 aggravating features of grievous bodily harmoffending24 and then set out three sentencing bands with a range of starting points foreach. Which band any particular case falls into was held to depend on the number andnature of aggravating factors present. The aggravating factors listed include suchmatters as extreme violence, premeditation, serious injury, use of a weapon, attackingthe head, vulnerability of the victim, gang warfare and multiple attackers.25[99] Band two which has a starting point of five to ten years' imprisonment is foroffending that features two or three of the listed aggravating features.26 Band threewhich has a starting point of nine to 14 years' imprisonment was held to encompassserious offending which has three or more aggravating factors, where theircombination is particularly grave.2723 Sentencing notes, above n 3, at [18], citing R v Taueki [2005] NZCA 174, [2005] 3 NZLR 372.24 At [31].25 At [34]–[41].26 At [38].27 At [40].[100] Significantly for present purposes, the Court in Taueki provided a descriptionof what a band two and band three concerted street attack would look like.[101] A band two "concerted street attack" was described as a:28 street attack in which a victim is set upon by a group of attackers in anattack involving the use of weapons found at the scene, a starting point at thelower end of band 2 would be indicated. If the attack involves blows to thehead or other serious injuries are caused, or there is premeditation, then astarting point higher in the band two spectrum would be required.[102] A band three "serious concerted street attack" was:29 [a]n episode of street violence where multiple victims set upon a victim ina premeditated attack using weapons which they have brought to the scene forthat purpose, and where serious and lasting injuries are inflicted on the victimwill call for a starting point in the lower to middle range of band 3. Where thevictim is particularly vulnerable, or the attack has "hate crime" aspects to it, ahigher starting point would be required. Where the victim is left with injurieswhich will have an ongoing impact on his or her enjoyment of life, a startingpoint at the top end of band 3 will be called for.[103] At Mr Pink's sentencing, the Judge expressed concern that Mr Pink had feltable in the small community of Ngāruawāhia to carry out such a brazen attack on themain street in broad daylight, no doubt believing that no one would have the will togive evidence against him. The Judge said it could not be allowed to go uncheckedand that a stern sentence was required so as to send a clear message that the communitywill not tolerate this level of violence.30[104] The Judge held that the offending came within band three of Taueki, warrantinga starting point of ten years' imprisonment.31 He then uplifted the starting point by sixmonths on account of Mr Pink's criminal history32 before adjusting it downwards by30 per cent because of personal mitigating factors. Those personal mitigating factorsrelated to Mr Pink's disadvantaged background as well as the positive things he haddone in the community. The adjustments resulted in an end sentence of seven yearsand four months' imprisonment.3328 At [39(a)].29 At [41(a)].30 Sentencing notes, above n 3, at [18] and [30].31 At [20].32 At [23].33 At [29]–[30].[105] The Judge concluded by saying that although a minimum period ofimprisonment would normally be imposed for violence of this nature, he had decidednot to impose one. That was in recognition of the good Mr Pink had done in thecommunity and because a minimum period was not sought by the Crown.34Arguments on appeal[106] Mr Elborough contended the sentence was manifestly excessive and out ofkilter with comparator cases.35 He submitted that correctly analysed the offending fellwithin band 2 of Taueki, not band 3, and that the appropriate starting point was sevenand a half to eight years' imprisonment, not ten years. In addition to the Judge'sstarting point being too high, he also argued there should not have been a six monthuplift for previous convictions. That was disproportionate and unwarranted. No issuewas taken with the extent of the discount for personal mitigating factors.[107] Developing these central contentions further, Mr Elborough submitted that theJudge had fallen into error by "searching for aggravating factors to boost bandstanding" and had also erred by finding that "virtually every one" of the Tauekiaggravating factors was present. In Mr Elborough's submission, the degree ofviolence and the seriousness of injuries should have been treated as inherent in theoffending and not aggravating features. It was also wrong to characterise the violenceas extreme. There were, he argued, only two key aggravating features, use of a weaponand premeditation with premeditation being present only to a low degree.Analysis[108] We do not accept these submissions.[109] What the Judge said was that "virtually every one of the aggravating featuresthat have been identified as applicable are established".3634 At [31].35 Citing R v Kirkwood [2021] NZHC 2202; Garrett-Phillips v R [2015] NZCA 563; Kreegher v R[2021] NZCA 22; and Kara v R [2013] NZCA 527.36 Sentencing notes, above n 3, at [18].[110] If the Judge meant features that have been identified in Taueki, that was plainlywrong. The list of aggravating features in Taueki include features that patently haveno application whatsoever to this case, like home invasion, perverting the course ofjustice, and public official victim. However, we consider it much more likely theJudge was referring to the Taueki culpability factors that had been identified by theCrown in its sentencing submissions as applicable; namely extreme violence,premeditation, use of weapons, vulnerability, victim impact, serious injury, multipleattackers and gang warfare.[111] We acknowledge there is the potential for double counting as between extremeviolence and serious injuries, serious injuries and victim impact, and between multipleattackers and victim vulnerability.[112] However, even allowing for those qualifications, we are not persuaded theJudge fell into error in placing the offending at the lower end of band three.[113] In our view, the Taueki description of a band three serious concerted streetattack is a better fit for this case than the description of a band two concerted streetattack. Contrary to a submission made by Mr Elborough, it was not a single blow withthe axe. There was in fact evidence of repeated blows. Nor do we consider the factthe blunt end was used in any way undermines the characterisation of the violence asextreme. The injuries were undoubtedly on any view of it very serious. The axe musthave been brought to the scene rather than found there and there was an element ofpremeditation. Finally, we note that although this was not gang warfare, the factattackers are wearing gang regalia and on gang business to punish one of their ownhas been held by this Court in Simon v R to be a "very serious further aggravatingfactor".37[114] There were thus in our assessment at least three significant aggravating factorsin this case which when viewed in combination amounted to particularly graveoffending. We therefore consider a starting point of ten years was available.37 Simon v R [2016] NZCA 449 at [31].[115] In coming to that conclusion, we have not overlooked the four comparatorcases relied on by Mr Elborough. However, we would not place the weight on themthat he would have us do. Only three of the cases were decisions of this Court and ofthose three, one involved a single attacker.38 It is noteworthy too that what was said inKara v R,39 was that the sentencing Judge's nine-year starting point was "clearlywithin range".40 A finding that nine years was held to be well within range does notmean that nine years is the only available starting point. We acknowledge that theoffending in Kara was more serious than the offending in this case. However there isa strong suggestion in the decision that because the offending "fell well" within bandthree and that ten years is the top of band two that the sentencing Judge in that casewould have been justified in adopting a higher starting point than the very bottom ofband 3.[116] As for the six-month uplift for previous convictions, we note that Mr Pink has84 previous convictions in total, with 25 of them being violence related offences.While some judges may not have imposed an uplift, we are not persuaded it was anerror warranting appellate intervention.[117] It is of course well established that the primary focus of an appellate court isin any event on the end sentence, rather than the sentencer's methodology.41 In ourview, having regard to the circumstances of this serious offending and the offender, aprison term of seven years and four months was not manifestly excessive.[118] The appeal against sentence is accordingly also dismissed.Solicitors:Crown Law Office, Wellington for Respondent38 Garrett-Phillips v R, above n 35; and Kreegher v R, above n 35.39 Kara v R, above n 35.40 At [18].41 Kumar v R [2015] NZCA 460 at [81].