MILLS v R [2020] NZCA 88

MILLS v R [2020] NZCA 88 [3 April 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA748/2015[2020] NZCA 88BETWEEN JAMES ANDREW MILLSAppellantAND THE QUEENRespondentHearing: 5 March 2020Court: Collins, Simon France and Lang JJCounsel: E A Hall for AppellantF R J Sinclair for RespondentJudgment: 3 April 2020 at 4pmJUDGMENT OF THE COURTA The application for an extension of time is granted.B The application to adduce further evidence is declined.C The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On 11 May 2010, Mr Mills pleaded guilty to having murdered Mr Faulkner on4 September 2009. He was sentenced on 16 June 2010 to life imprisonment witha minimum period of imprisonment (MPI) of 11 years.1 He now appeals his1 R v Mills HC Palmerston North CRI-2009-054-3808, 16 June 2010.conviction, saying that Mr Faulkner was shot by accident during a struggle and that,at most, he is guilty of manslaughter.Background[2] At the time he shot Mr Faulkner, Mr Mills was living in a small housing unitin Palmerston North with his partner, Ms Parker. Mr Faulkner had been paid $140 toprovide Ms Parker with methamphetamine. When he defaulted in completing his sideof the drug deal, Mr Faulkner was invited to the place where Mr Mills and Ms Parkerwere living. There he was met by Mr Mills, who was armed with a modified rifle.Soon after Mr Faulkner entered the unit a neighbour heard Ms Parker arguing with aman. The neighbour then heard a sound consistent with a gun being discharged.[3] At the time Mr Faulkner was shot, he was positioned close to the door ofthe unit with his head facing the direction of the door. The bullet passed through foldsin the right sleeve of Mr Faulkner's sweatshirt and then struck him beneath the rightside of his chin. The bullet entered Mr Faulkner's left upper chest and exited,splintering his left upper arm bone. The bullet penetrated the lounge wall at a heightof 1.135 metres from the floor. Mr Faulkner was 1.85 metres tall. Police analysissuggested Mr Faulkner's right arm must have been raised in the general direction ofwhere the bullet was fired and that his right elbow was above the line of his rightshoulder. The police concluded Mr Faulkner was likely to have been crouching orstooping at the time he was shot. This analysis is contested by Mr Mills.[4] What is not disputed is that after he was shot Mr Faulkner managed to grabthe gun from Mr Mills and walk out of the unit. He collapsed and died about 50 metresaway. When he was found, the firearm was close to Mr Faulkner's body.[5] Later that day, Mr Mills went to the police station. His clothing was stained inplaces with blood. He told the police that Mr Faulkner had come to the unit whereMr Mills and Ms Parker lived in order to resolve a drug deal that had gone sour and,that it was Mr Faulkner who brought the gun to the unit. He said there was a physicalstruggle between himself and Mr Faulkner during which, Mr Faulkner presentedthe gun which discharged during the struggle.[6] A subsequent scene examination recovered ammunition in the unit thatmatched the round that killed Mr Faulkner. The police also found gun parts in the unitthat were connected to the gun that had been used to kill Mr Faulkner.[7] Mr Mills was represented by an experienced criminal lawyer, who also had theassistance of another lawyer with experience over a number of years in criminal trials.Mr Mills has not complained about the advice he received from his lawyer and he hasnot waived legal privilege.[8] During a telephone conference with counsel on 29 March 2010, Miller J wastold that the murder charge was likely to be resolved by a guilty plea. The Judgedirected Mr Mills be arraigned on 11 May 2010. In his minute the Judge recorded thatthere may have to be a hearing to determine where Mr Mills was standing in relationto Mr Faulkner at the time the fatal shot was fired. Mr Mills pleaded guilty beforeMallon J on 11 May 2010. The Judge recorded at the time of Mr Mills' guilty pleathat there was a dispute between the Crown and Mr Mills as to the circumstances inwhich the shot was fired. Mallon J directed the Crown file a summary of facts by28 May 2010 in anticipation of sentencing taking place on 16 June 2010.[9] The summary of facts filed by the Crown on 28 May 2010 set out the forensicanalysis undertaken by the police and the Institute of Environmental Science andResearch (ESR). That summary states:(a) Mr Mills was standing more than 1.18 metres from Mr Faulkner whenhe shot him. This calculation was based on the length of the rifle(680 millimetres) and the absence of ballistic soot and propellant onMr Faulkner (the ESR said that ballistic soot and propellant would havebeen deposited within 50 centimetres of the muzzle of the gun used inthis case).(b) Mr Faulkner was standing near to and facing the door of the unit.His right arm must have been raised towards the direction of the gunwhen it was fired, and that he "must have been crouching or coweringdown when he was shot".(c) The trajectory of the bullet was in a slight downward direction and firedfrom a height consistent with the barrel pointing slightly downwards atan angle of about five degrees from a height that must have been morethan 1.135 metres above the floor.[10] Mr Mills is 184 centimetres tall. The Crown case is that he was standing andholding the rifle when it was discharged.[11] On 2 June 2010, Mr Mills' trial counsel filed a memorandum in which he said:The only potential dispute to be resolved is whether or not there was anystruggle between the Prisoner and the deceased prior to the fatal shot beingdischarged. The Prisoner by his guilty plea acknowledges that, when hedischarged the firearm he meant to cause the victim bodily injury likely tocause death and was reckless whether death ensued or not.The second sentence of the paragraph we have quoted refers to Mr Mills beingculpable of murder pursuant to s 167(b) of the Crimes Act 1961.[12] Ronald Young J, the sentencing Judge, then issued a minute saying, that ifthe Crown was seeking an MPI greater than 10 years, then Mr Mills and his lawyerwould need to decide if the assertion there was a struggle before the gun wasdischarged would be relevant to any MPI the Court was likely to impose.[13] There was no application for a disputed facts hearing. Instead, sentencingproceeded on the basis that Mr Mills was guilty of murder because he shot Mr Faulknerin the circumstances referred to in his counsel's memorandum of 2 June 2010, andwhich we have set out at [11].Prosecution of Ms Parker[14] On 19 May 2011, Ms Parker was charged with having been a party tothe murder of Mr Faulkner. Her trial commenced in July 2012. Part-way through hertrial Ms Parker pleaded guilty to manslaughter. That plea was entered after theconclusion of the Crown case where witnesses including Dr Rutherford, Mr Walsh,Mr Newton and Mr Hewitt had given evidence. Dr Rutherford is a pathologist, whoexamined Mr Faulkner's body. Mr Walsh is an ESR scientist, who arranged for teststo be conducted on gunshot residue found on samples taken from Mr Faulkner's handsand on particles extracted from the cartridge from which the bullet that killedMr Faulkner was fired. Mr Newton is an ESR scientist, who examined the scene ofthe offending and Mr Hewitt is a police armourer, who examined the firearm in thiscase. We will refer to some of the evidence of those witnesses later in this judgment.Extension of time to appeal[15] On 24 December 2015, Mr Mills filed a notice of appeal against conviction.The notice of appeal was filed approximately five and a half years out of time.Mr Mills says the delay was due to his difficulty in locating new counsel andcompleting a review of the file. In order to deal with the merits of appeal, we grantan extension of time to appeal the conviction.2Grounds of appeal[16] Ms Hall, Mr Mills' counsel in this Court, filed comprehensive submissionswhich can be distilled to the following points.[17] First, Mr Mills pleaded guilty through a "self-induced error". That error is saidto be attributed to:(a) Mr Mills' ill-health. At the time of the offending Mr Mills was takinganti-depressants and medication for pain relief and insomnia. He alsohad a habit of taking a variety of other drugs, including methadone,ritalin, cannabis, valium, mushrooms and methamphetamine. It is alsosaid Mr Mills was feeling stress and pressure when he pleaded guiltyand that he did not know a plea was expected from him when hepleaded guilty.(b) His lack of understanding of the basis upon which the Crown said hewas guilty of murder. This aspect of his case is said to have been causedby the absence of a summary of facts at the time he entered his plea and2 Crimes Act 1961, s 388(2).the fact that two ESR witness statements were only disclosed on31 May 2010.(c) His desire to protect Ms Parker. Mr Mills says that he thought that ifhe pleaded guilty to murder the Crown would discontinue the chargeof being a party to murder against her.[18] Second, the Crown cannot exclude the reasonable possibility that Mr Mills hada tenable defence to the charge of murder. This aspect of the appeal is founded onthe following propositions:(a) The Crown cannot reasonably exclude the possibility that there wasa struggle between Mr Mills and Mr Faulkner as stated by Mr Millswhen he spoke to the police.(b) There is expert evidence that supports Mr Mills' case that he andMr Faulkner were in close proximity when the rifle was discharged.(c) There is expert evidence concerning the trajectory of the bullet that isconsistent with Mr Mills' statement that he raised the rifle up and awayfrom Mr Faulkner, who was trying to pull the gun away from Mr Millswhen it discharged.(d) There is expert evidence that suggests the gun had a low triggerpressure.[19] In order to support these propositions, Mr Mills seeks to adduce furtherevidence including an affidavit of Mr Mills dated 18 October 2019, and two affidavitsfrom forensic experts, Mr Mastaglio and Ms Millington.Governing principlesMiscarriage of justice[20] Mr Mills' conviction pre-dated the introduction of the Criminal Procedure Act2011. His appeal is therefore to be determined under s 385(1)(c) of the Crimes Act.This means his appeal can only be allowed if he can demonstrate that his convictionconstituted a miscarriage of justice.Appeals from guilty pleas[21] While it is possible for a defendant to successfully appeal his or her convictionfollowing a guilty plea, such appeals are rarely allowed.[22] The categories of circumstances in which a successful appeal may be broughtfollowing a guilty plea were considered by this Court in R v Le Page3 and Merrilees vR.4 In Whichman v R, this Court summarised the effects of Le Page and Merrileeswhen it said the cases where an appeal may succeed after a guilty plea has been enteredwill normally fall into one of the following categories:5(a) where the appellant did not appreciate the nature of, or did not intendto plead guilty to, a particular charge;(b) where on the admitted facts the appellant could not in law have beenconvicted of the offence charged;(c) where the plea was induced by a ruling which embodied a wrongdecision on a question of law; and(d) where trial counsel erred in advising as to the non-availability ofcertain defences or potential outcomes, or where counsel wronglyinduces a decision to plead guilty under a mistaken belief orassumption that no tenable defence existed or could be advanced.[23] The Court in Whichman acknowledged, however, the categories ofcircumstances which justify an appeal being allowed following a guilty plea are notinvariably limited to the four categories referred to in that decision. The overridingconsideration in each case is whether a plea of guilty by the appellant has produceda miscarriage of justice.63 R v Le Page [2005] 2 NZLR 845 (CA) at [16]–[19].4 Merrilees v R [2009] NZCA 59 at [33]–[35].5 Whichman v R [2018] NZCA 519 at [35].6 At [36].AnalysisThe decision to plead guilty[24] Ms Hall acknowledged Mr Mills' circumstances do not fit within any ofthe categories referred to in Whichman in which appeals have been allowed followinga plea of guilty. That was a proper concession by Ms Hall because:(a) Mr Mills knew the nature of the charge and in particular, he pleadedguilty after receiving the benefit of competent legal advice aboutthe implications of s 167(b) of the Crimes Act.(b) There was, on the facts, no legal impediment to Mr Mills being guiltyof the offence with which he was charged.(c) The plea was not induced by any ruling that was wrong in law.(d) There is no suggestion of error on the part of defence counsel.[25] Ms Hall advanced this aspect of Mr Mills' appeal on the basis that he pleadedguilty through a "self-induced error" that was caused by his poor health, his lack ofunderstanding of the basis upon which the Crown said he was guilty of murder and hisdesire to protect Ms Parker.[26] We accept that prior to the events of 4 September 2009, Mr Mills is likely tohave frequently consumed a variety of illicit and prescribed drugs. His guilty pleawas, however, entered eight months after he had been held in custody. There is nobasis upon which we could conclude that his mind was adversely affected by any formof medication or drugs when he pleaded guilty.[27] We also accept Mr Mills is likely to have been suffering from stress andpressure at the time he pleaded guilty. There is, however, no basis for us to concludethat his guilty plea was induced through some form of psychological or psychiatriccondition.[28] It is also very clear Mr Mills had the benefit of competent legal advice at thetime he entered his plea. His trial counsel's memorandum of 2 June 2010 explainedthat the guilty plea was made on the basis that Mr Mills was culpable under s 167(b)of the Crimes Act. Any responsible lawyer would have explained the implications ofs 167(b) to Mr Mills. Mr Mills' decision not to waive legal professional privilege andhis acknowledgement that his trial lawyer cannot be criticised for the guilty plea leadsus to infer that Mr Mills must have been fully aware of the basis upon which it wassaid he was guilty. We also believe any competent lawyer would have explained toMr Mills when he was expected to plead. We reject the implication that Mr Mills feltpressured into pleading guilty.[29] The claim Mr Mills pleaded guilty in order to save Ms Parker from beingprosecuted for murder is also without merit. Ms Parker was not charged with being aparty to the murder of Mr Faulkner until over a year after Mr Mills pleaded guilty tohis offending. Although Mr Mills may always have thought Ms Parker was at risk ofbeing charged as a party to murder, the date the charge was laid against her underscoresthe fallacy of Mr Mills' claim that "when [he] pleaded guilty and was sentenced [he]thought that "any day now" they would drop the charge against Ms Parker".[30] In these circumstances, we are satisfied Mr Mills made a conscious,well-informed decision to plead guilty to murder. He did so after reflecting on hiscircumstances for eight months and after obtaining competent legal advice. AlthoughMr Mills did not have the summary of facts or the key forensic reports when hepleaded guilty, he more than anyone knew what had occurred when Mr Faulkner wasshot. It is not surprising that he recognised the futility of trying to defend the chargeof murder based upon s 167(b) of the Crimes Act.[31] In summary, there is no basis for establishing any of the recognised exceptionalcircumstances to allow an appeal against conviction where a guilty plea has beenentered. We will however also analyse whether there is a tenable argument thata miscarriage of justice will arise if the appeal is dismissed.7 Mr Mills is essentiallyarguing that since there was no disputed facts hearing, an incomplete picture of7 Gleason-Beard v R [2018] NZCA 349, [2018] 3 NZLR 699 at [44]–[46].the evidence existed at the time he pleaded guilty. He offers additional evidence to tryto complete this picture.Evidence[32] It is necessary to explain in more detail the evidence relied upon by the Crownand by Mr Mills in support of their respective cases.The Crown's caseThe scene[33] The front doorway of the unit leads straight into the lounge where Mr Faulknerwas shot. The front door is positioned at approximately 1 o'clock if one is standing inthe middle of the lounge. At approximately 4.30 o'clock is a doorway that leads to abedroom. Immediately adjacent to that doorway is an entrance way that leads into thekitchen. The entrance way to the kitchen is at about 5 o'clock. If a person stands inthe entrance way to the kitchen and looks into the lounge their line of sight would beparallel to the right hand wall of the lounge and be directed towards the area where thefront door is located.[34] The dimensions of the lounge are approximately 5 metres by 3.75 metres.On the left side of the lounge, at 9 o'clock, was a three-seater couch. In the middle ofthe lounge was a single lounge chair. At approximately 6 o'clock was a two-seatercouch that was positioned at an angle so that a person sitting on that couch would havelooked towards the back wall of the lounge with their back facing towards the frontdoor. That couch seems to have been used as the depository for laundry. Half wayalong the right-hand side of the lounge, at about 3 o'clock was a suitcase that is lyingon the floor. The suitcase was next to a TV stand that was positioned closer to thefront door than the suitcase.[35] There were many other pieces of furniture and items in what was a verycluttered lounge. The furniture and items we have referred to, however, providesufficient bearings for present purposes.Where Mr Faulkner was positioned[36] In his report and evidence at Ms Parker's trial, Mr Newton commented uponthe position of Mr Faulkner when he was shot. He explained in his report:From a study of the direction of the bullet through the lounge front wall,the direction of the bullet through Mr Faulkner and from the positioning ofthe blood and tissue staining on the wall, I formed the opinion thatMr Faulkner was positioned by the front door with his head facing towardsthe front door when he was hit with a single shot. The shot had been fired ina slightly downwards direction across the lounge towards the front wall.[37] Mr Newton also said in evidence:I believe Mr Faulkner was standing side on to the trajectory of the bullet, iethe firearm. He would have had I believe his right elbow raised above hisright shoulder and he may have had his head or his chin resting down on hischest and his knees may have been slightly bent so he was not in so much acrouched position but not standing up straight but slightly, slightly crouchedMr Faulkner would probably be leaning towards his right hand so with hisarm, his elbow at least above his shoulder, his arm would have beenoutstretched most likely and leaning slightly towards his right hand side.[38] Mr Newton explained that examinations of Mr Faulkner's clothing revealedno evidence of soot or bullet propellant residue around the bullet holes in his clothing.Mr Newton conducted experiments using the gun used to kill Mr Faulkner and somematching unfired rounds. From those tests he concluded the muzzle of the gun musthave been at least 50 centimetres from Mr Faulkner when it was fired.Blood stains[39] Mr Newton's evidence was that heavy blood stains around the inside entrancearea of the front door, the door itself and an adjacent wall demonstrated Mr Faulknerwas shot very near the front door.[40] Mr Newton also referred to blood stains on:(a) a small table in the lounge;(b) the lounge chair in the middle of the lounge; and(c) the three-seater couch along the left wall of the lounge.In addition, Mr Newton referred to a linear pattern of projected blood on the ceiling,on the wall adjacent to and above the three-seater couch and on a magazine rack nextto that couch. Mr Newton thought these blood stains and patterns were consistent withMr Faulkner being shot near the front door and then moving into the body of thelounge, where he swung his arm or other part of his body in a motion that caused theblood spattering to occur. The Crown case is that the blood stains we have referred toin this paragraph were created when Mr Faulkner grabbed the gun from Mr Mills. Atthat time, they were both near the centre of the lounge.Trajectory of the bullet[41] In Ms Parker's trial, Mr Newton explained the experiments he conducted todetermine the trajectory of the bullet that killed Mr Faulkner. He explained that afterdetermining the point at which the bullet struck the wall of the unit behind whereMr Faulkner was positioned, Mr Newton arranged for a person of similar height toMr Mills to stand at various positions in the lounge to determine how he would haveheld the rifle. Mr Newton said that from these experiments he formed the opinion thatif Mr Mills was standing upright he could have held the rifle between his waist andhis shoulder. If he was near the front door when the rifle was fired, then it would havebeen held closer to his waist. Mr Newton said that the further Mr Mills was standingfrom Mr Faulkner when he was shot, the higher Mr Mills would have had to have beenholding the rifle. It is the Crown's case that Mr Mills was likely to have been standingsomewhere between the two-seater couch and the suitcase when he shot Mr Faulkner.That would have placed Mr Mills somewhere between 2.5 and 4 metres from the frontdoor.Residue samples[42] Mr Walsh, a forensic scientist employed at the ESR, arranged for gun residuesamples found on Mr Faulkner's and Mr Mills' hands to be analysed at a laboratory inAdelaide. Those samples were compared with samples taken from particles insidethe cartridge that fired the fatal bullet. In his evidence at Ms Parker's trial Mr Walshsaid that six of the 20 particles taken from inside the cartridge contained mercury.He said it was "significant that none of the particles from the hands of Mr Faulkneror Mr Mills contained mercury". Mr Walsh said the lack of connection betweenthe particles taken from Mr Faulkner's hands and those taken from the cartridge couldbe explained in one of two ways:(a) the particles found on Mr Faulkner's hands were not from the gun beingdischarged; or(b) the particles found in Mr Faulkner's hands came from the surface ofthe gun that may have been there from previous discharges usingammunition that contained mercury particles.Mr Mills' case[43] Mr Mills' explanation of the immediate events that led to Mr Faulkner's deathhave changed with the passage of time:(a) When he spoke to the police on 4 September 2009, Mr Mills saidMr Faulkner brought the gun to the unit occupied by Ms Parker andMr Mills. When he was interviewed by the police on 11 September2009, Mr Mills elaborated on his explanation saying that whenMr Faulkner arrived at the unit he and Mr Faulkner had a verbalexchange, during which Mr Faulkner pulled the gun from his jacket.Mr Mills said he grabbed at the gun and that at that point Mr Faulknerpushed him and that as he was stumbling back Mr Mills grabbed holdof the gun and that it then went off.(b) Mr Mills was asked by the interviewing officer about otherammunition found in the unit which matched the round that killedMr Faulkner. He was also asked about gun parts that the police foundin a cupboard in the unit, which were associated with the gun used tokill Mr Faulkner. Mr Mills was not able to provide an explanation forthat evidence.(c) In his affidavit in support of his appeal, Mr Mills takes a differenttack. He now says:Ms Parker was at the flat with me when Mr Faulkner arrived.Ms Parker and I were talking in the kitchen when he came tothe door. As he came into the flat I came out of the kitchenarea holding the gun, I had it pointing down by my side. I saidto Mr Faulkner, "sit down, we need to talk". Ms Parker wentbehind Mr Faulkner to shut the front door and as she walkedaround behind him, and then to the side of him once the doorwas shut, Mr Faulkner backhanded her – hard. He then camefor me. He grabbed out towards me reaching for the gun.I lifted up the gun and tried to pull it away from his reach sohe couldn't grab hold of it. I couldn't physically step back soI pulled the gun upwards by lifting my elbows up above myshoulders. The gun was still facing downwards but now at anangle as it was held higher.Mr Faulkner reached out and grabbed at the gun. I can't sayfor certain if he had hold of it when it went off but he wasdefinitely reaching for it trying to grab at it. It fired as I waspulling it away from him. I did not intentionally pullthe trigger. It was not aimed in firing mode at him. It gaveme such a fright when it fired.(d) Mr Mills annexed two statements to his affidavit, one dated17 December 2018 and the other 3 July 2019. In his statement of 3 July2019, Mr Mills describes where he was standing at the time he shotMr Faulkner. He has marked that position with an "X" on a photographof the lounge that is annexed to his statement. The "X" is next to thesuitcase lying on the floor against the right-hand wall of the lounge.The suitcase was positioned about two metres from the front door.Mr Mills marked with a "Y" where he said Mr Faulkner was positionedwhen he was shot. The "Y" is slightly closer to the television standfrom where the Crown says Mr Faulkner was positioned when he wasshot.[44] Before analysing Mr Mills' current explanation in light of the other evidencewe make the following general observations regarding its credibility. First, he offersit for the first time almost ten years after he entered his guilty plea. Second, it variesconsiderably from the version he gave to the police in 2009. Third, his refusal to waiveprivilege means we cannot it compare it to the version of events he clearly providedto his lawyers before they filed the memorandum dated 2 June 2010.Mr Mastaglio[45] Mr Mills relies on an affidavit dated 15 October 2019 from Mr Mastaglio,a forensic firearms consultant who has reviewed the evidence in this case.Mr Mastaglio said the Crown's case concerning the distance between Mr Mills andMr Faulkner at the time the gun was discharged was not necessarily correct. He saidthat "the distance between the two would depend on how the gun was held – theycould have been closer than 1.18m".[46] Mr Mastaglio said in his affidavit:The [Crown's evidence concerning the] trajectory through the body and intothe wall has been extrapolated as a straight line. This may not have been thecase due to the bullet being slightly deflected as it passed throughthe [deceased]'s left humerus bone. However, the proposed trajectory is areasonable one given the wound ballistics and damage to the wall.[47] Mr Mastaglio said that:I also agree that Mr Faulkner's right arm must have been raised so that theholes lined up with the wounds through his chin and chest. Additionally,the oblique angle of the wound track across the [deceased]'s chest means thathe must have been virtually side-on to the direction of the shot.[48] Mr Mastaglio said in his conclusions:It is reasonable to conclude that the muzzle of the gun was in excess of 50cmfrom the [deceased] when the gun was fired.No ballistics evidence has been seen to support the proposition that the gunwas discharged during a struggle.The distribution of the bullet holes in the sweatshirt could be explained bythe alternative proposition that the garment was "bunched up" due to beinggrabbed, however the absence of substantive close-range effects, i.e.soot/propellant deposition around the first bullet entry hole, infers a minimummuzzle to garment distance of 50cm.[49] Mr Mastaglio said that if the cartridge that had been used in this case hadpreviously been modified, then it would be likely to discharge less propellant and sootthan an unmodified cartridge. There was no indication that the cartridge had beenmodified but there was a possibility it had been changed because equipment associatedwith the modification of ammunition was found in the unit where Mr Mills lived.In any event, Mr Mastaglio stated he would expect a modified cartridge which wascapable of discharging the fatal bullet int his case to have deposited soot propellantand residue on Mr Faulkner's clothing if he was standing very close to the rifle'smuzzle.Ms Millington[50] Mr Mills also relies on an affidavit of Ms Millington, a forensic scientist whoexamined photos and descriptions of the bloodstains and spatter marks in the unit. Inher affidavit, dated 11 October 2019, Ms Millington explains that forward-spatterpatterns are projected from the victim's exit wounds in the general direction of theshot fired. This can assist in positioning the victim at the moment they were shot.Ms Millington said other than the distribution of fine tissue spatter on the wall wherethe bullet penetrated, she could "not identify any other patterns within the scene thatcould be exclusively attributed to the shot and/or that could help in determining theprecise location and/or position of [Mr Faulkner] at the moment that he was shot". InMs Millington's view, the location of the forward-spatter pattern appears to be in broadagreement with the position that Mr Mills described in his statement of 3 July 2019.Residue on Mr Faulkner's hands[51] In her submissions, Ms Hall contended that at Ms Parker's trial Mr Walsh"confirmed that Mr Faulkner had gunshot residue on his hands – meaning he was inclose proximity when the firearm had been discharged".Trigger pressure[52] There was evidence the gun used to kill Mr Faulkner had a lighter than normaltrigger pressure although when tested by the police armourer, the gun did not dischargewhen dropped.Is there nevertheless a tenable defence?[53] Mr Mills argument on appeal is that the gun was discharged due to a struggle,not because he meant to cause Mr Faulkner bodily injury or was otherwise culpableunder s 167(b) of the Crimes Act. This is being advanced on "fresh evidence" ofMr Faulkner's position when he was shot. There are five aspects to the forensicevidence that require analysis:(a) residue on Mr Faulkner's hands;(b) blood stains/spatter evidence;(c) trajectory evidence;(d) position of Mr Faulkner when shot; and(e) trigger pressure.Residue on Mr Faulkner's hands[54] Ms Hall's submission that Mr Walsh's evidence confirmed the residue onMr Faulkner's hand showed he was in close proximity to the firearm when it wasdischarged does not accord with Mr Walsh's evidence in Ms Parker's trial.[55] Mr Walsh said it was significant that the particles taken from Mr Faulkner'shands did not contain mercury and were therefore not consistent with six of theparticles extracted from the cartridge from which the bullet was fired. Mr Walsh'sevidence goes no further than to show it was unlikely the particles found on his handwere associated with the bullet that killed him. Furthermore, Mr Walsh's evidence isconsistent with Mr Faulkner having grabbed the barrel of the gun after he had beenshot and in doing so, picked up particles from the barrel of the gun that were notconnected to the bullet that killed him.Blood stains/spatter evidence[56] At most, Ms Millington's evidence suggests the forward blood spattermovement was broadly consistent with the position that Mr Mills described in hisstatement of 3 July 2019. There are two reasons why Ms Millington's evidence doesnot undermine the safety of Mr Mills' conviction:(a) Ms Millington's opinion does not impact upon the overwhelmingforensic evidence that Mr Faulkner was in close proximity to the frontdoor when he was shot.(b) The blood spatter marks that Ms Millington comments upon areentirely consistent with the Crown case that Mr Faulkner movedtowards the middle of the lounge and grabbed the gun after he had beenshot by Mr Mills.Trajectory evidence[57] The description Mr Mills now gives of holding the gun high with his elbowsabove his shoulders is impossible to reconcile with him discharging the gun at closequarters while he stood next to the suitcase and shot Mr Faulkner when he wasstanding close to the front door. A gun held in the way now described by Mr Millswould have required him to have been standing much further back in the lounge, wellaway from where he now places Mr Faulkner and himself. Mr Mills also says that hecould not physically step back when Mr Faulkner tried to grab the gun from him.That statement is hard to reconcile with Mr Mills' description of where he says he wasstanding when Mr Faulkner was shot.Position of Mr Faulkner's body[58] None of the forensic evidence advanced by Mr Mills undermines the Crown'scase that Mr Faulkner was positioned near the front door at least 1.18 metres fromMr Mills with his body side-on to the gun and his head facing towards the door. Hislegs must have been slightly bent and his chin lowered towards his chest with his rightelbow raised. Those are not the actions of a man grabbing for a gun. If Mr Faulknerwere truly grabbing for a gun he would have had to have been facing the weapon andbe positioned far closer to the weapon than the forensic evidence demonstrates.Trigger pressure[59] The evidence of the gun having a light trigger pressure does not advanceMr Mills' case because the balance of the forensic evidence fails to support his claimthat the gun discharged during the course of a struggle or when Mr Faulkner wasattempting to grab the weapon.Conclusion[60] The forensic reports advanced in support of Mr Mills' appeal do not provideany cogent basis upon which we can conclude that Mr Mills accidentally shotMr Faulkner during the course of a struggle or when Mr Faulkner was trying to seizethe weapon. On the contrary, the reports from Mr Mastaglio and Ms Millingtonsubstantially confirm the Crown case that Mr Mills must have shot Mr Faulkner whenhe was near the front door of the lounge in a stooped position with his head facingtowards the door. All experts agree the muzzle of the gun must have been at least50 centimetres away from Mr Faulkner when he was shot. The trajectory of the bullet,however, demonstrates that Mr Mills could not have been holding the gun in the wayhe now describes and at the same time be standing next to the suitcase in the lounge.Mr Mills' most recent explanations as to how Mr Faulkner was shot and the forensicevidence he now wishes to adduce do not impact upon the safety of his guilty plea.[61] We decline to admit the additional evidence offered in support of the appeal.It is not cogent in the sense it does not undermine the safety of Mr Mills' conviction.8We need not make any ruling in relation to the evidence given by the Crown'switnesses at Ms Parker's trial because that evidence clearly supports the Crown's casethat Mr Mills was guilty of the murder of Mr Faulkner.[62] We are satisfied that there was no risk of a miscarriage of justice caused byMr Mills having pleaded guilty to the murder of Mr Faulkner.8 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.Result[63] The application for an extension of time is granted.[64] The application to adduce further evidence is declined.[65] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent