MCKAY v R [2019] NZCA 393

MCKAY v R [2019] NZCA 393 [29 August 2019]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA364/2017[2019] NZCA 393BETWEEN DONALD ANGUS MCKAYAppellantAND THE QUEENRespondentHearing: 20 May 2019Court: Kós P, Peters and Mander JJCounsel: J W Watson for AppellantA J Ewing for RespondentJudgment: 29 August 2019 at 11 amJUDGMENT OF THE COURTA The applications to adduce fresh evidence are granted.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] The appellant, Donald McKay, was convicted following trial by jury ofsexually violating by unlawful sexual connection a cognitively impaired woman overseparate periods between 1987 and 2007. He was also convicted of indecentlyassaulting another cognitively impaired woman, the first complainant's sister-in-law,between 2009 and 2010. Mr McKay appeals his convictions on the grounds histrial counsel failed to call a witness who he had instructed to be called, and the trialJudge, Judge Harvey, failed to give a reliability warning.[2] Mr McKay was sentenced to an effective term of imprisonment of 11 years.1He appeals that sentence, alleging it to be manifestly excessive.Background[3] In 2013, two women each made complaints to police of having been sexuallyoffended against by Mr McKay. AB, who was 61 years old at the time of the trial,alleged she was forced to give oral sex to Mr McKay when she was in her 30s and 40s.Her 52-year-old sister-in-law, CD, described a single indecent assault that hadoccurred when she was in her mid to late 40s.[4] AB described Mr McKay as being like her uncle and his wife as being her "sortof like, aunty", although she was not sure of the exact relationship. AB is cognitivelyimpaired with an IQ of 71 and is described as "borderline in intellect" with deficits inher working memory and verbal comprehension. The evidence given at trial describedhow she was able to live independently and function in the community but struggledwith some functional skills.[5] Over the course of 1987 and 1988, AB lived in Auckland with herthree-year-old son. Mr McKay and his wife operated a whiteware store which ABwould visit. It was her evidence that Mr McKay would proposition her in theworkshop of the store, and when she refused Mr McKay made her perform oral sexon him. This occurred four to five times over a period of six months and gave rise tothe first representative charge of sexual violation by unlawful sexual connection.1 R v McKay [2017] NZDC 12896 [Sentencing notes].[6] AB and her partner at the time, XY, came to live with Mr McKay and his wifein Moerewa. Mr McKay was convicted of a representative charge of sexuallyviolating AB while she lived at Moerewa between 1995 and 1996. AB would be takenout for driving lessons by Mr McKay and forced to perform oral sex on him.Other charges of unlawful sexual connection related to the same period. AB describedtwo further incidents of Mr McKay requiring her to perform oral sex on him.These took place at a house AB described as belonging to the "cat lady", who was aperson with whom she had made friends.[7] After a period in Christchurch, AB and XY came to live with the McKays inWhangarei before moving to live elsewhere. Mr McKay was convicted of tworepresentative charges relating to this period during the 2000s. The first of thosecharges related to when Mr McKay would again sexually violate AB when he wasalone with her during driving lessons. AB's evidence was that she tried to avoidMr McKay, claiming she had a headache, sore leg or sore stomach, but Mr McKay,his wife and, indeed, XY would encourage her to go, and she could not avoid thoseencounters.[8] The second of the representative charges during this period related to occasionswhen, at Mr McKay's house in Whangarei, he would request AB to give him amassage and would then force her to perform oral sex on him. On one of thoseoccasions, AB gave evidence that she left a window of the house open knowingMrs McKay was outside. She thought the wife had heard the request for a "blow job"and that she came "storming in" and "had a go at him".[9] The second complainant, CD, has "mosaic Down syndrome" and an IQ of 57.She functions at an extremely low level in all areas of cognitive function and is limitedin her listening and verbal comprehension. She knew Mr McKay through AB.CD described an incident during a visit from the McKays when they were living inWhangarei between 2009 and 2010. She was in the kitchen when Mr McKay cameup behind her and grabbed her breasts. This occurred in the presence of Mrs McKay,who was described as "laughing, thinking it was a great joke".[10] When interviewed by the police in December 2014, Mr McKay acknowledgedthat AB was a distant relation and that he and his wife had taken custody of her sonmany years ago. He denied the allegations of forcing AB to perform oral sex on himor having indecently touched CD.The trial[11] At the trial, both AB and CD gave evidence. Propensity evidence was alsocalled of comments made by Mr McKay that were capable of indicating a sexualinterest in the two women. Mr McKay gave evidence during which he repeated hisdenials. An issue which attracted much focus was whether Mr McKay had theopportunity to be alone with AB when giving her driving lessons. Mr McKaymaintained he was always accompanied by either XY or one of the children.XY himself gave evidence for the defence, during the course of which he"stipulate[d]" that at no time was AB alone with Mr McKay when taking drivinglessons. A former foster child of the McKays also gave evidence about the drivinglessons, although the period she stayed with them did not match the time AB was livingin Moerewa.[12] Mrs McKay gave evidence and maintained her husband always had one ofthe children or XY with him when he took her driving. This conflicted with her earlierstatement to police that Mr McKay had given driving lessons to AB on her own.When challenged about that, she described her prior statement as a mistake.Mrs McKay maintained that, although AB had lived in the same house with them, shedid not think AB and Mr McKay had ever been alone together during those periods.She acknowledged that AB had once complained to her that her husband"had interfered with her" but explained "I know he hadn't".Conviction appeal[13] The appeal proceeded on two grounds.2 The first was that, in defiance of hisclient's instructions, Mr McKay's trial counsel Mr Muston failed to call his daughter,Edith McKay, as a witness. The second ground was based on the alleged failure bythe Judge to give a reliability warning about evidence of conduct alleged to haveoccurred more than 10 years previously.3Failure to call a witness[14] Mr McKay contends the failure by his trial counsel to follow his instructionsto call Edith has resulted in a miscarriage of justice.Background to the non-calling of the witness[15] We received affidavit evidence from Mr McKay, Edith, and Mr Mustonregarding the content of Edith's proposed evidence and the circumstances relating toher not being called as a defence witness at trial. All three witnesses werecross-examined on their affidavits, although the questioning did not greatly advancethe state of the evidence. We do not consider the differences in their evidence isultimately material to the outcome of this aspect of the appeal.[16] Mr McKay's complaint centres on a set of written instructions by Mr Mustondated 11 May 2017 which resulted from a meeting he had with Mr Muston at his officethat day in the week prior to his trial. In his note, Mr Muston relevantly records:6. Don is prepared to take the risk that his convictions for dishonestycome out during the trial if I challenge prosecution witnesses oncharacter not directly relating to the issues....2 A number of other grounds were raised in the notice of appeal but were not pursued before us andwere effectively abandoned. The appellant acknowledged that no evidence had been led that hadbeen earlier ruled inadmissible, as had been alleged in the appeal notice. No evidence was filedby the appellant in relation to an issue concerning jury members, and was acknowledged to beabandoned in the appellant's written submissions. Similarly, no evidence was filed on the appealfrom other possible witnesses referred to in the notice of appeal. Insofar as the complaint relatedto the non-calling of those witnesses, the reasons why that ground was not pursued were set out inthe appellant's written submissions and not pursued before us.3 Evidence Act 2006, s 122(2)(e).8. I am directed to call Edith and Becks about the conversation with [AB]at the church — which means that your conviction history will comeout....12. At this stage, you are willing to risk your convictions for dishonesty...if you have to....14. To be resumed.[17] Mr Muston had earlier met with Edith in November 2016. She had providedhim with a note which he dated 24 November 2016. It read:I went to [T]ikipunga [Baptist] [C]hurch on Sunday about a year to 2 yearsago at about 10 am. I saw [AB] she stopped me and asked if I saw my dadlately. I told her no we are not talking at the moment and she said my dad([D]onald McKay) was stealing laptops, cam[e]ras, phones of[f] her and Iknew that it was her son [...] taking it all cause he tried to sell it to me. I toldher that and she said "oh well it doesn't matter I'm going to get him any wayI can".[18] On 5 April 2017, Mr Muston had a meeting with Mr McKay during which theydiscussed whether Mr McKay would give evidence at trial. Mr Muston's handwrittennote records Mr McKay's "present view is that if he does not have to he will not giveevidence". On 25 April, Mr Muston received an email from a witness (the McKays'former foster child) providing details about which she would later give evidence atthe trial. On 9 May, Mr Muston met with Mrs McKay and prepared a brief from whichher evidence was led at trial. On 10 May, Mr Muston again met Mr McKay.Mr Muston's note of that meeting recorded Mr McKay's view that he would now giveevidence, and his instructions that Mr Muston was to call Mrs McKay and XY whoMr Muston would meet and brief the following day. Apart from the meeting on11 May, further meetings were held by Mr Muston with his client on 13 and 14 May,which his time records showed were for the purpose of "briefing".[19] After Mr Muston's meeting with Edith in November 2016, she together withMr McKay again met with Mr Muston. Both Mr McKay and Edith referred to thismeeting as having occurred on 11 May, which is the meeting at which Mr Mustonrecorded his client's instructions to call Edith as a witness. Mr McKay's evidence wasthat he had told Mr Muston before that date that Edith had a conviction forsocial welfare fraud. Edith's evidence was that at her second meeting with Mr Mustonshe went through with him the evidence she would give at Mr McKay's trial.She noted that Mr Muston expressed a reservation about her being a witness becauseof her social welfare fraud conviction, but that there was no indication she was notgoing to be called as a witness at the trial.[20] Mr Muston's evidence regarding the circumstances of the second meeting withEdith was different. His evidence was that Edith was not present at the meeting on11 May when he received and recorded Mr McKay's instructions to call her, but ratherhe met her at one of the further meetings he had with Mr McKay on 13 or 14 May.It was at that point he learnt of Edith's conviction for social welfare fraud as a resultof him asking her if she had any convictions for dishonesty. That disclosure causedMr Muston to express the view to Mr McKay that it would not be wise to call her.It was Mr Muston's evidence that both Edith and Mr McKay would have understoodfrom their conversation that she was not going to be called as a witness at trial.[21] We consider that Mr Muston's recollection is likely to be correct because in histyped note of the 11 May meeting, he refers three times to the risk of Mr McKay'sconvictions for dishonesty coming out during the trial. However, there is no mentionof the risk of Edith's previous conviction for welfare fraud being revealed as a resultof calling her, which we consider would likely have been discussed and noted byMr Muston at the time.[22] Edith gave evidence that she attended the courthouse during the week ofthe trial expecting to be called as a witness, and that she was excluded fromthe courtroom because of that status. However, it was Mr Muston's evidence that hehad "no sense during or after trial that [he] had failed to call a witness as instructed".To the best of his recollection, he did not see Edith during the trial.Edith's recollection, however, was of attending a meeting at Mr Muston's office onenight during the trial.[23] Mr Muston did not cross-examine AB about having a conversation with Edithat the church. In opening the defence case to the jury after the conclusion of the Crowncase, Mr Muston set out the witnesses he intended to call on his client's behalf.These included Mr McKay, Mrs McKay, XY, and the foster child who was now anadult. Notably, no mention was made of calling Edith despite each of the defencewitnesses being introduced in turn to the jury by Mr Muston in his address.Mr Muston's evidence was that Mr McKay raised no issue with him regarding theomission of Edith.[24] Mr Muston had no recollection of Mr McKay, either during the trial or after itsconclusion, raising with him a failure to call Edith as a witness. It was not until hewas assisting Mr McKay's present counsel to draft the notice of appeal that Mr Mustonbecame aware of Mr McKay's complaint of not having called Edith.[25] In his affidavit, Mr McKay made no reference to having raised the issue of notcalling Edith during the course of the trial. When cross-examined about the point,he belatedly maintained that he had. Insofar as there is this conflict in the evidence,we prefer Mr Muston's recollection which he set out in his affidavit. We consider thathad Mr McKay raised the issue with Mr Muston during the trial Mr Muston wouldhave recollected that fact and taken steps at the time to correct the position by callingEdith, who it appears was present at the courthouse.Discussion[26] There is nothing unusual about instructions being reviewed or the defencebeing revised over the course of preparing for trial or during the trial itself. An obviousexample in the present case is Mr McKay's change from initially indicating that hewould not be giving evidence to deciding that he would do so. Edith's recentconviction for social welfare fraud detracted from her credibility as a witness, as didher relationship with her father. It is understandable that Mr Muston had reservationsabout calling her as a witness and we accept his evidence that he understood that hisadvice to that effect had been accepted, both by Mr McKay and by Edith.[27] However, despite no complaint having been made by Mr McKay at the time, itis possible, as Mr Muston observed in his affidavit, that he and the McKays could havebeen at cross purposes about whether Edith was to be called as a witness at theconclusion of the second meeting. Ultimately, we do not consider much turns onwhether Mr Muston's instruction to call Edith was still extant when the defence caseconcluded because we are satisfied that the absence of Edith's evidence did not resultin any miscarriage of justice.[28] The decision of whether or not to call Edith as a defence witness was not oneof the "fundamental decisions" on which trial counsel's failure to follow specificinstructions will generally give rise to a miscarriage.4 Fundamental decisions relate,for example, to the entry of plea, electing whether to give evidence, and to advance adefence based on a defendant's version of events.5 Apart from those types ofdecisions, a miscarriage of justice will "generally only arise if the decision was notone a competent lawyer would have made and if what occurred may have affected theoutcome".6[29] Mr McKay has a long list of previous convictions for various forms ofdishonesty which starts in 1964 and continues up to 2016. Mr Muston was concernedthat calling Edith about her conversation with AB in the church could risk Mr McKay'sconvictions being disclosed to the jury. Mr Watson, who appeared on behalf ofMr McKay on appeal, submitted that Mr Muston was mistaken about that issue.Insofar as there was a risk of Mr McKay's convictions being introduced as a result ofEdith's evidence, which purported to show that AB held a grudge against Mr McKayand that she was out to get him, we accept that was unlikely to have resulted in asuccessful application to introduce Mr McKay's criminal history.7 We also see noparticular risk arising from counsel at least putting the substance of Edith's evidenceto AB for her comment during the course of cross-examination.[30] Section 38 of the Evidence Act 2006 provides that the prosecution may onlyoffer evidence about a defendant's veracity if a defendant has challenged the veracityof a prosecution witness by reference to matters other than the facts in issue andthe Judge permits the prosecution to do so. We doubt that challenging the truthfulnessof a complainant's evidence by reference to a possible motivation to lie would meetthat test. On the other hand, while the Crown would have had to first inform the Judgeof its intention to offer evidence of Edith's social welfare fraud conviction, we see no4 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].5 At [65].6 At [77].7 Evidence Act, s 49.impediment to that being put to the witness as a legitimate means of challenging hercredibility.[31] Proceeding on the basis that Mr McKay did wish to call Edith, and that neitherwitness had concerns about the possibility of their previous convictions being elicited,the issue devolves to whether that failure was material in the sense that there was areal risk of it affecting the outcome of the trial.8[32] We do not consider the absence of Edith's evidence resulted in any materialprejudice to the conduct of the defence or would have affected the trial's outcome.We reach that conclusion for broadly two reasons. First, the focus of Mr McKay'sdefence centred on an inability to have offended against AB on the occasions shenominated without being observed or discovered. In particular, the defence centredon a lack of opportunity for the offending to have occurred either in the whitewareshop or when Mr McKay took AB for driving lessons. A considerable amount ofevidence was called for the purpose of demonstrating that Mr McKay was not alonewith AB and that the offending could not therefore have happened.[33] Additionally, Mr McKay was able to stress the length of time it had taken forAB to report the offending, the inconsistencies in AB's evidence, the lack ofindependence of other Crown witnesses who were said to have come along to supportAB's case, and the contradiction by XY of her claim of having disclosed Mr McKay'sconduct to him. Set against the defence case that was presented at trial, we do notconsider Edith's evidence materially added to its strength.[34] Secondly, while evidence of a possible motive on the part of a complainant tomake a false allegation could have potentially been of assistance, we consider Edith'sevidence of such a motivation was equivocal and of minimal probative value. It waspremised on AB holding a grudge against Mr McKay on the basis he had stolen fromher and that she was going to "get him". We do not consider Edith's evidence of whatthe complainant said to her and the circumstances of that exchange takes that8 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70]; and A (CA779/2010) v R [2011]NZCA 311 at [25]–[27].proposition very far. Arguably, it is equally consistent with seeking to "get" the manwho had sexually abused her.[35] It is apparent from Edith's proposed evidence of AB accusing Mr McKay ofhaving stolen from her that AB's allegation of theft was genuinely held. Someone hadbeen stealing from her, and Edith corrected her that it was AB's own son.Edith's account is that this then sparked AB's response: "oh well it doesn't matter I'mgoing to get him any way I can". Other than the evidence of Mr McKay havingsexually violated AB, there is no apparent reason on the available material for why ABwould hold any animosity towards Mr McKay, apart from her original belief of whichshe had been disabused, that he had stolen from her.[36] Such a suggested motive to "get" Mr McKay would have to be weighed againstAB's alternative motivation "to get him" because he had sexually abused her.Viewed in the context of all the evidence, Edith's proposed testimony is equivocal.A further difficulty in advancing the theory that AB had developed a grudge as a resultof Mr McKay having recently stolen from her was Mrs McKay's evidence that ABhad complained to her, as far back as when they were living together in Moerewa, ofMr McKay having forced her to have sex. Mrs McKay's brief of evidence wasdisclosed as an exhibit to Mr Muston's affidavit and confirms that earlier complaint.[37] For these reasons, we do not consider the absence of Edith's evidence, or thefailure to put the conversation at the church to AB in cross-examination resulted in amiscarriage of justice.Reliability directionThe Judge's ruling[38] Mr Watson submitted that the Judge had been wrong not to warn the jury ofthe need for caution in deciding whether to accept evidence about the conduct ofMr McKay alleged to have occurred more than 10 years previously.9 Prior to the Judge9 Evidence Act, s 122(2)(e).summing up to the jury, Mr Muston requested that such a reliability warning be given.The Judge declined to do so.10[39] The Judge did not consider there was anything in the complainants' evidencewhich pointed to unreliability.11 The Judge considered that the jury was well aware ofthe complainants' impaired cognitive abilities, having received expert evidence on thesubject and having seen and observed the complainants for themselves.12 He referredto this Court's decision in Greer v R, which dealt with a submission that becausethe complainant in that case had impaired cognitive abilities and was of lowintelligence the Judge should have given a reliability warning.13 This Court, aftercommenting on the performance of the complainant under cross-examination andemphasising that such a warning was discretionary, dismissed that ground of appeal.14[40] The Judge acknowledged that the present case had the added factor of delay,but he considered that both complainants had been good witnesses who had remainedconsistent throughout.15 The Judge specifically pointed to the accuracy of AB inidentifying where she was residing during various periods of the offending, which wasconfirmed by Ministry of Social Development records. He described her memory as"impressive".16 The Judge considered there was a very real danger that the jury,particularly after having already received expert evidence about the complainants'cognitive abilities, would give undue and inappropriate emphasis to this aspect if hewas to provide the requested warning. He considered the jury had sufficientinformation to make their own judgment regarding the complainants' credibility andreliability, which had been a significant focus of both counsel's closing addresses.17[41] Mr Watson submitted that the Judge's observations about Mr McKay havinghad the opportunity to test the complainants' evidence by cross-examination, and ofhaving been able to call evidence to refute some of the particulars provided by AB,10 R v McKay DC Whangarei CRI-2014-088-3187, 18 May 2017 (Ruling No 2) at [18].11 At [8].12 At [7].13 Greer v R [2016] NZCA 630.14 At [28]–[33].15 R v McKay, above n 10, at [12].16 At [9].17 At [13]–[14].ignored the inherent limitation on a defendant's memory and the ability to gather andcall evidence because of the effluxion of time. Mr Watson was critical of the Judgenot alerting the jury to the difficulty Mr McKay faced in challenging the allegationslong after they happened.[42] Against that is the lack of any specific difficulties identified by Mr McKay ashaving prejudiced the presentation of his defence as a result of the significant delay.Mr Watson submitted that the absence of such particulars did not absolve the Judgefrom making comment to the jury regarding the effect of time on memory.However, this was not a memory case. Mr McKay's defence was one of completedenial. It did not engage issues of reliability but rather whether the complaints hadbeen fabricated. In that regard, there was also some criticism that the Judge had notemphasised that witness credibility and reliability were central issues in the case, butwe consider those issues would have been obvious to the jury and were the focus ofcounsel's respective addresses.Discussion[43] In the present case the delay in AB making her complaint extended to well over20 years. It followed that the Judge was required to consider whether to give areliability warning to the jury about the need for caution before acceptingthe evidence.18 Where a request is made to caution a jury about whether to acceptthe evidence or the weight to be given to a witness's evidence, the Judge need notcomply with that request if he or she is of the opinion that to do so might unnecessarilyemphasise the evidence or there is any other good reason not to comply with therequest.19 We do not consider the Judge erred in deciding not to do so, largely becauseof the reasons he identified.[44] There are no particular indicia of unreliability or any significant gaps orinconsistencies in the complainants' accounts. No difficulties have been raisedregarding the vintage of the evidence in terms of obtaining documentation or gatheringevidence, and locating witnesses to meet the complainants' accounts. AB was able to18 Evidence Act, s 122(2)(e).19 Section 122(1) and (3).provide details of where she was living at the time these events took place, and theperiods she was either living with or had contact with Mr McKay. As a result, he wasable to call witnesses and present a positive defence, particularly as it related tothe offending that was alleged to have occurred at the time he gave AB driving lessons.[45] We consider the Judge, in the knowledge the complainants' intellectualdifficulties had been fully traversed in evidence, and after having assessed the apparentreliability of the complainants' evidence for himself, was entitled to be concerned thata warning would give undue and inappropriate emphasis to the complainants'cognitive difficulties when the issue of their disabilities was squarely before the juryalready and had been the subject of cross-examination. As a result, we are satisfiedthe Judge was justified in declining the request to give a warning and that, in any event,any arguable failure in having not provided such a warning did not impact on theoutcome of the trial.Sentence appeal[46] The only ground challenging the sentence is Mr McKay's age and health.He was 72 years old at the time of his sentencing in June 2017. The Judge expresslynoted Mr McKay's age and his health, and acknowledged that he should make someallowance for this.20 The ultimate sentence imposed of 11 years' imprisonment meansthat a one year discount was afforded for those factors.21[47] Mr McKay is reported to have suffered from 13 heart attacks and has had fivebypasses, with his last heart attack occurring approximately some 7–8 years ago.That event resulted in open heart surgery. He takes medication both for his heartcondition and also for gout, diabetes and emphysema.[48] This Court has previously concluded that the extent to which age and ill-healthcan be treated as a mitigating factor, and the discount to be afforded for thoseconsiderations will vary according to the particular circumstances of the offender andthe offending.22 The reductions given turn on the particular circumstances of20 Sentencing notes, above n 1, at [39].21 The starting point adopted was 12 years' imprisonment: at [35].22 M (CA91/2012) v R [2013] NZCA 325 at [54].the case.23 A term of imprisonment can also be reduced if the serving of the sentencewill be appreciably harsher on an individual offender because of the state of theirhealth or their particular personal circumstances.24[49] We accept that the reduction for this aspect of Mr McKay's personalcircumstances could have been greater. However, we do not consider the sentenceshould be adjusted or that the failure to provide a greater discount has resulted in amanifestly excessive sentence.[50] The Crown brought to our attention that the trial Judge applied the sentencingguideline bands in R v AM (CA27/2009) for unlawful sexual connection rather thanthe higher range of sentence imposed for the offence of rape, which this Court has heldshould be adopted where the offending involves penile penetration of the mouth.25A 12 year starting point was adopted by the Judge on the basis that Mr McKay'soffending fell within the lower to mid range of band three for unlawful sexualconnection offending (9–18 years).26 The equivalent starting point based on theapplication of band three for penile penetration of the mouth (12–18 years) is 14 years.We also note that the Judge specifically cited Mr McKay's age and health as a reasonfor not imposing a minimum period of imprisonment which might otherwise have beenthought appropriate for sexual offending against vulnerable victims over such alengthy period of time.27[51] Taking these aspects of the sentencing into consideration, we do not considerthe 11 year term of imprisonment can be held to be manifestly excessive.Result[52] The applications to adduce fresh evidence are granted.[53] The appeal against conviction is dismissed.23 At [54].24 R v Luce [2007] NZCA 476 at [23]–[24].25 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [65] and [69]; andN (CA200/2016) v R [2017] NZCA 165 at [38].26 Sentencing notes, above n 1, at [35].27 At [36]–[38].[54] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent