LINGMAN v R [2023] NZCA 209

LINGMAN v R [2023] NZCA 209 [2 June 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA409/2021[2023] NZCA 209BETWEEN JAY CHRISTOPHER LINGMANAppellantAND THE KINGRespondentHearing: 22 March 2023Court: Clifford, Dunningham and Cull JJCounsel: T M Cooper KC and C G Farquhar for AppellantZ R Johnston and B So for RespondentJudgment: 2 June 2023 at 3.00 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cull J)[1] Mr Lingman was convicted of murder by a jury in the Auckland High Courtbefore Harland J. He pleaded guilty to charges of possession for supply of a Class Adrug (cocaine), a Class B drug (MDMA) and a Class C drug (diphenidine andphenethylamine). He was sentenced by Harland J to life imprisonment with aminimum period of imprisonment of 15 years and two months.1 He now appeals hisconviction for murder only.1 R v Lingman [2021] NZHC 1394.Background[2] Mr Lingman and the victim were both involved in dealing illegal drugs.On 24 February 2019, the victim arrived at the front door of Mr Lingman's ruralproperty. Mr Lingman fired six shots from his Ruger .22 semi-automatic firearm, threeof which entered the victim's skull and caused his death.[3] Mr Lingman took steps to conceal the victim's body and belongings. Shortlyafter the shooting, Mr Lingman parked the victim's vehicle behind another vehicle onhis property and discarded the victim's phone. The next day, he purchased a largechest freezer and severed the victim's legs with a chainsaw to fit the victim's body intothe freezer. The freezer was left in plain view near the front door of his house, until itwas put in a shed at Mr Lingman's address. Two days later, he purchased a shippingcontainer and subsequently purchased some quad bike ramps to hide the victim's carthat was still on his property. Some days later, he obtained water from a neighbourand a water delivery service to water blast the property and remove any incriminatingevidence.[4] The victim was reported missing by his flatmate on 27 February 2019.The police were able to access the victim's phone location data, which led them toMr Lingman's address. On arriving at his address, the police noticed a strong smellof bleach and signs of unusual water blasting at the front door. The police noticedblood on the top of a chest freezer near the handle, at the rear of the property.On opening the freezer, the police found the victim's body. They also located thevictim's car, drugs, and a number of guns and a chainsaw with the victim's blood onit. When spoken to by police, Mr Lingman said, "I was fearing for my life. Thisarsehole was coming to kill me and my son."[5] Mr Lingman was then charged with murder and the three drug-related chargesof possession for supply. Mr Lingman was tried for murder before Harland J in theAuckland High Court, having pleaded guilty to the drug supply charges at the outsetof the trial.[6] The primary issue at trial was whether Mr Lingman killed the victim withmurderous intent or acted in self-defence. The defence case was that Mr Lingman wasacting in self-defence when he discharged his firearm at the victim. Mr Lingmanmaintained he was a drug dealer, and the victim was his cocaine supplier. The victimcame onto his property unannounced. He was angry after realising that drugs he hadstored in a secure facility on Mr Lingman's property had gone missing.[7] Mr Lingman claims that the victim took the shotgun, which Mr Lingman hadleft lying outside the shed and confronted Mr Lingman about the missing drugs beforeraising the shotgun at him. Mr Lingman said that with his eyes closed, he fired shotsfrom a semi-automatic rifle, which he had taken from inside the house, while he wasmoving to get closer to his car to leave.[8] The jury found Mr Lingman guilty of murder.The appeal against conviction[9] Counsel for Mr Lingman submit that the errors in the Judge's directions to thejury on self-defence and prejudice and sympathy, together with the unfairly prejudicialadmission of the post-mortem photograph, led to a miscarriage of justice. They submitthat the conviction is unsafe and should be quashed.[10] The three grounds of appeal alleged are as follows:(a) the Judge erred in her directions to the jury on self-defence;(b) the Judge gave inadequate prejudice and sympathy directions onMr Lingman's post-death conduct; and(c) the post-mortem photographs lacked probative value, were highlyprejudicial, and should have been ruled inadmissible.[11] We now examine each of those grounds in turn.Ground one — the self-defence directions[12] The appellant's principal criticism of the Judge's self-defence directions is thatthe jury was directed that they needed to assess what the appellant "honestly believed"the circumstances to be at the time of the killing. Thus, Ms Farquhar submits, the jurywas asked to accept either Mr Lingman's evidence as being truthful, or the Crowntheory that he was lying, before proceeding to consider the elements of self-defenceunder s 48 of the Crimes Act 1961. The inclusion of the word "honestly" in relationto the circumstances as the appellant believed them to be is not part of the statute, wasunnecessary and confused the jury with respect to both the standard and burden ofproof, because it led to an over-emphasis on whether the appellant's evidence waswholly truthful.[13] Section 48(1) of the Crimes Act provides:Every one is justified in using, in the defence of himself or herself or another,such force as, in the circumstances as he or she believes them to be, it isreasonable to use.[14] Self-defence comprises subjective and objective elements in three steps.The first, the subjective inquiry is what did the defendant believe the circumstances tobe. This provides the threshold test.2 The second step is whether the defendant wasacting in self-defence, again considered from his or her point of view. The last step iswhether the force used was reasonable in those circumstances; the objective element.3The Crown then has the burden of disproving self-defence.[15] At the outset of the Judge's summing-up to the jury, the Judge reinforced thatit was a fundamental issue for the jury to decide whether Mr Lingman was acting inself-defence. She emphasised "the Crown must make you sure he wasn't". Standardburden and standard of proof directions were given, including a direction that if thejury did not believe Mr Lingman, they were not to leap to a conclusion of guilt. At theoutset of the self-defence direction, the Judge said this:[85] I am going to give you an overview of self-defence. You have alreadyheard a little bit about this, but to flesh it out somewhat; Mr Lingman does nothave to stand by while he or anyone else is under attack or the threat of anattack. On the contrary, he is entitled to use reasonable force to defend himselfor another person from attack or the threat of it. As I said to you before, aperson who uses reasonable force in self-defence has a complete defence to2 R v Sarich CA407/04, 16 May 2005 at [33] and [37]; R v Auckram [2007] NZCA 570.3 This follows the approach endorsed by Tipping J in Shortland v Police HC Invercargill AP74/95,23 April 1996 at 2 which was approved in R v Li CA140/00, 28 June 2000. See Simon France(ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CA48.01].any criminal charge brought against them. Importantly however, it is for theCrown to satisfy you beyond [a] reasonable doubt that the defence of self-defence does not apply. Mr Lingman does not have to prove he was acting inself-defence. The Crown must prove he was not.[86] There are pre-conditions to the use of this defence and these arecaptured in Questions 2, 3 and 4, with the focus being on the point in time ofwhich Mr Lingman fired the rifle.[16] In directing the jury that the first step was for them to decide what Mr Lingmanhonestly believed the circumstances to be at the time, the Judge emphasised that thejury was to stand in his shoes, consider it through his eyes, decide what he knew orbelieved, and what he honestly believed was happening at the time:[87] The first step is for you to decide what Mr Lingman honestly believedthe circumstances to be at the time. And you will see that is set out inQuestion 2, by asking "What were the circumstances that Mr Lingmanhonestly believe[d] them to be when he shot [the victim]?" The circumstancesinclude Mr Lingman's beliefs as to the nature and seriousness of any threat,and his beliefs as to its imminence and the courses of action available to avoidor combat it. That is what you have got to decide first.[88] What was going through his mind? Stand in his shoes. Consider itthrough his eyes. Decide what he knew or believed. What did he honestlybelieve was happening at the time?[17] In addressing the second step, the Judge said this:[108] whether, in the circumstances as Mr Lingman believed existed, theCrown has made you sure that he was not acting to defend himself when hefired the rifle. Putting it another way, is it reasonably possible Mr Lingmanwas acting to defend himself when he fired the rifle? [18] In the Judge's question trail provided to the jury, the questions on self-defencewere framed as follows:2. What were the circumstances as Mr Lingman honestly believed themto be when he shot [the victim]? The circumstances includeMr Lingman's beliefs as to the nature and seriousness of any threatand his beliefs as to its imminence and the courses of action availableto avoid or combat it.Once you have determined this, go to question three.3. Given what Mr Lingman believed was happening at the time, are yousure that when he shot [the victim], Mr Lingman was not acting todefend himself from [the victim]?If NO, go to question four.If YES, go to Issue 3 (questions five and six).4. Given what Mr Lingman believed was happening at the time, are yousure that when he shot [the victim], Mr Lingman used more force thanwas reasonable?If NO, find Mr Lingman not guilty. Do not continue.If YES, go to Issue 3 (questions five and six).[19] The statutory definition of self-defence under s 48 of the Crimes Act does notinclude the word "honest" but in R v Thomas4 and in subsequent decisions,self-defence has been held to be available to a defendant who holds an honest, albeitmistaken, belief in the circumstances.5 Consequently, the word "honestly" has beenimported into model directions and question trails to clarify that the defendant's beliefdoes not need to be reasonable.[20] In Stepanicic v R, the Court of Appeal approved the following question trailwhere the defendant was of the belief that police were using excessive or unlawfulforce and claimed he acted in self-defence:63.3 What were the circumstances as Mr Stepanicic believed them to be?3.4 In those circumstances, are you sure Mr Stepanicic honestly believedConstable Carter was using excessive force against him?3.5 And further, in those circumstances, are you sure Mr Stepanicic wasnot defending himself?(This question is framed in this way because the Crown must excludeMr Stepanicic's defence that he was acting in self-defence.)3.6 Are you sure the force Mr Stepanicic used was not reasonable in thecircumstances as he believed them to be?(This question is framed in this way for the same reason.)4 R v Thomas [1991] 3 NZLR 141 (CA) at 144, applied in Mackley v Police (1994) 11 CRNZ 497(HC) at 503–504, R v Sarich, above n 2, and Kazazi (aka Van Gosliga) v Police HC WellingtonCRI-2011-435-2, 4 August 2011.5 Stepanicic v R [2015] NZCA 35 at [11].6 At [10].[21] As can be seen from Stepanicic, questions 3.3 and 3.4 mirrors question two ofHarland J's question trail in Mr Lingman's trial.[22] There have been two lines of authority in this Court on the wording of theself-defence direction. One approach adopted model directions requiring the jury toassess the circumstances as the defendant believed them to be, taking the view of theevidence most favourable to the defendant.7 The other approach required the jury toassess the circumstances as a defendant honestly believed them to be.8[23] In Mackley v Police,9 Tipping J discussed the word "honest" in the expression"honest belief" as it applies to the self-defence direction. He said:10 It is a moot point whether the word "honest" in the expression"honest belief" actually adds anything. The question is whether the beliefasserted was in fact held at the relevant time. There is a danger that the word"honest" is inadvertently construed as meaning "justified". It is not necessaryfor the belief to have been a justified belief. All that is necessary is that thebelief must have actually been held.The difficulty, of course, is that a lot of people may actually believe thingswithout reasonable grounds for their belief. The decisions of the Court ofAppeal in Thomas and Waaka must lead to the conclusion that howeverunreasonable may have been the defendant's belief that the police officer wasnot acting in the course of his duty, if that belief was actually held at thematerial time and that is the reason why the obstruction took place, no offencehas been committed.(Emphasis added).[24] The Crown invites an interpretation of "honest belief" as encouraging the juryto look for a belief that was actually held, not whether the belief was reasonable tohold in the circumstances. The word "honestly," the Crown says, reinforces thesubjective nature of the jury's inquiry.[25] We adopt the reasoning in Mackley and consider "honestly" does not addanything other than emphasising that the belief was actually held, as Tipping J7 R v Kerr [1976] 1 NZLR 335 (CA) at 340; Theobold v R [2018] NZCA 409 where "honestly" wasnot included in the model directions.8 "Honestly" was included in the model directions approved in R v Hackell (CA) 131/02, 10 October2002; R v Bridger [2003] 1 NZLR 636; R v Howard [2003] 20 CRNZ 319 (CA); Stepanicic v R,above n 5and Theobald v R, above n 7,at [56].9 Mackley v Police, above n 4..10 At 503.articulated. We consider the use of the word "honestly" in the direction and thequestion trail is synonymous with "actually." In a different context, the Supreme Courtin Hayes11 reinforces this interpretation of "honest belief" by saying:12 there is no suggestion that the belief has to be reasonable or based onreasonable grounds. It is the existence of the belief which matters, not itsreasonableness. Of course the word "honest", in the phrase "honest belief",was designed to signify that the belief must actually be held. Despite thetautology, its usage in that sense is unobjectionable. It is preferable, however,to follow the drafting of the definitions of dishonestly and claim of right bynot qualifying the word belief at all. The potential difficulty with the word"honest" in the phrase "honest belief" is its capacity to be understood assignifying an ability for the accused person to frame their own moral code(the so called "Robin Hood" defence).[26] The jury's determination of what the circumstances were as the defendantbelieved them to be, standing in his shoes, has to be assessed along with all of thesurrounding circumstances. That requires the jury to accept or reject the defendant'saccount. The jury must be satisfied that the Crown has proved that self-defence doesnot apply in the circumstances. That does give rise to an element of a credibilityassessment as to whether the defendant's belief, from a subjective standpoint, can beaccepted or rejected. But we disagree that the inclusion of the word "honestly"overemphasised the credibility aspect of the inquiry. If anything, it has the capacityfor the defendant to "frame their own moral code" as the Supreme Court suggests.[27] We reject the appellant's submission therefore, that the inclusion of the words"honest belief" can cause confusion for a jury because they may need to decidewhether the defendant is honest or dishonest. We consider the use of "honestly" inthis case was unobjectionable, although we respectfully agree with theSupreme Court's articulation that it is preferable to follow the statutory wording in thiscontext also.[28] The Judge's direction on the standard and onus of proof was conventional.We do not consider the Judge was in error.11 Hayes v R [2008] NZSC 3, [2008] 2 NZLR 321. The Supreme Court was considering the meaningof "dishonestly" in the context of dishonestly using a document under ss 229A [repealed] and 228of the Crimes Act 1961.12 At [34] (footnotes omitted).Further grounds[29] While the inclusion of the word "honestly" was the focus of the appellant'ssubmissions before us, in written submissions, the appellant makes four furthercriticisms about the Judges' self-defence directions, summing up and question trail.These relate to:(a) Directions on the onus and standard of proof;(b) Directions on inferences;(c) Balance in the summing up; and(d) Directions on pre-emptive strike.[30] We do not consider those directions involved any material errors. We canexplain our reasons succinctly.Onus and standard of proof[31] The first of these criticisms were that the Judge, in directing the jury on self-defence, failed to clearly guide the jury on the standard of proof, and where the onusof proof lay.[32] Regarding the onus of proof, the appellant submitted that the Judge's finaldirection in [121] of the summing up on self-defence completely reversed the onus ofproof. The direction in issue stated:[121] So, if you find that self-defence has not been proved or you are notsatisfied that the self-defence has been made out, answering those questions,you would then go on to look at Issue Three, which is to do with Mr Lingman'sintent and Issue Three deals with intent for murder.[33] We agree that this direction was a mistake but in the context of the summingup as a whole has not led to error. In addition to the general directions on onus andstandard of proof, the Judge included the following:[9] The Crown must make you sure he wasn't [acting in self-defence][10] If, however, the Crown has satisfied you that Mr Lingman was notacting in self defence[43] [Reference to Mr Lingman giving evidence] the fact that he diddoes not change the fact that the Crown has to prove the charge, whichincludes disproving self-defence, beyond reasonable doubt.[44] Mr Lingman does not become responsible for proving hisinnocence[69] [Referring to Question Trail] the Crown must prove all elements ofthe charge, and disprove all elements of self-defence, beyond reasonabledoubt[85] it is for the Crown to satisfy you beyond reasonable doubt that thedefence of self-defence does not apply. Mr Lingman does not have to provehe was acting in self-defence. The Crown must prove he was not.[118] it is for the Crown to make you sure that the force used byMr Lingman was not reasonable.[119] If the Crown has not made you sure Mr Lingman's shooting of[the victim] was justified as being in self-defence; then you must find him notguilty of murder, and not guilty of manslaughter.[34] It follows that the misdirection at [121] of the summing up was an outlier. In itsopening, the Crown said, "it is the Crown that has brought this charge and the Crownhas to prove it." The question trail was headed with a banner that reiterated the onusand standard of proof: "The Crown must prove all elements of the charge and disproveall elements of self-defence, beyond reasonable doubt". Overall, we consider that theone misstatement in the direction did not materially mislead the jury as to where theonus lay.[35] The appellant relied on Afamasaga v R13 and Murray v R14 to argue that theJudge ought to have invited the jury to take the most favourable view of thecircumstances as the defendant believed them to be as long as they were reasonablypossible. We consider that to say that Mr Lingman's version of events ought to be13 Afamasaga v R [2015] NZCA 615, (2015) 27 CRNZ 640. The Court of Appeal at [45] did notcriticise the question trail which included:(2) What were the circumstances as Mr Afamasaga believed them to be at the time he shotMr Turner?In deciding this issue, you should take the view that is as favourable to Mr Afamasaga asyou believe is reasonably possible.14 Murray v R [2017] NZCA 467 at [78].accepted if reasonably possible, is simply another way of viewing the Crown's burdento disprove self-defence beyond reasonable doubt. Given our conclusion above, thatthis standard was made clear to the jury and for reasons that follow, we do not considerthat the omission to include "reasonable possibility" was fatal.[36] The Crown in closing, when discussing whether the jury was "sure that when[Mr Lingman] shot [the victim], he was not acting in self-defence", counsel added"[i]f you're not sure about that, in other words if you consider it's reasonably possiblethat he was defending himself, you will need to consider the third question." Crowncounsel again stated it later in its closing "you only need to consider this thirdquestion if you are left in some doubt about that, if it is reasonably possible, he wasacting defensively."[37] The Judge in summing up said:[46] However, if what Mr Lingman said when he gave evidence leaves youunsure, if you think what he said is reasonably possible, the proper verdict isstill not guilty because you will have been left with a reasonable doubt. If whatMr Lingman said seems a reasonable possibility, the Crown will not haveproved the charge and you will be finding Mr Lingman not guilty.[108] whether, in the circumstances as Mr Lingman believed existed, theCrown has made you sure that he was not acting to defend himself when hefired the rifle. Putting it another way, is it reasonably possible Mr Lingmanwas acting to defend himself when he fired the rifle?[38] We consider this repeated reference to the reasonable possibility ofMr Lingman's account is sufficient to accompany the statements of the Crown'sburden to disprove the defence beyond reasonable doubt. We do not consider itsomission from the question trail to have had the effect of displacing this onus orstandard.Directions on inferences[39] The appellant submits that the Judge's direction that inferences from,"other reliably established facts" to decide the circumstances as the appellant believedthem to be ignored and therefore disregarded Mr Lingman's own evidence regardinghis state of mind. The passage of the Judge's summing up in issue states:[53] For example, you will have to decide what the circumstancesMr Lingman believed them to be at the time he shot [the victim].A defendant's state of mind is a question of fact which the Crown is requiredto prove like any other relevant fact. The only difference is that unlike mostfacts, direct evidence cannot be called to prove what a defendant was thinkingat a particular time. That is because you cannot see what is going on insidethe somebody's head. So, in that case, you would draw an inference fromother reliably established facts to draw a conclusion.(Emphasis added).[40] We agree with the Crown's concession that this direction overlooksMr Lingman's direct evidence of his state of mind. However, we do not consider ithas the effect of implying that the jury should ignore his evidence. Just prior, at [45]the Judge discussed that Mr Lingman gave his account of what happened. The Judgesaid: "if you accept his evidence, the proper verdict would be not guilty because hewould be entitled to the defence of self-defence".[41] When viewed in context, we consider the oversight in the Judge's direction oninferences does not amount to a material error.Balance in the summing up[42] The appellant submits that the Judge's summing up of the respective theoriesof the case was unbalanced, as the Judge set out the reasons why the Crown contendedMr Lingman was lying without reference to the counter submissions from the defence.The appellant says the Judge asked the jury to choose between the competing accounts.[43] Having carefully considered the Judge's summing up, we do not accept that itwas unbalanced in favour of the Crown. We agree with the Crown's submission thatthe Judge fairly explained the defence case regarding self-defence, followed by theCrown's case. The Judge noted that both counsel presented "skilful and powerfulclosing addresses". The Judge then outlined three examples of inferences the Crowninvited the jury to make, together with the defence counter-responses to thoseinferences.[44] While we accept that at no point did the Judge invite the jury to choose betweentwo competing theories, it was obvious that the jury had to choose between the twosets of competing inferences. We find there was no error.Directions on pre-emptive strike[45] The appellant submits that the Judge failed to give specific directions on howa pre-emptive strike can still amount to self-defence in law.[46] The Crown submits that the Judge made it clear that Mr Lingman was notrequired to stand by while he was under attack. Further detailed directions on the useof "pre-emptive strike" risked overcomplication.[47] The question on this appeal is whether a pre-emptive strike direction wasappropriate and necessary in the present case. No authority was provided by theappellant to suggest there is a positive obligation for the Judge to provide a detaileddirection regarding pre-emptive strike. However, the authorities have addressed therequirements of a pre-emptive strike. A threat has to be "imminent or immediate[with] no alternative available" for a pre-emptive strike to amount to self-defence.15[48] The Judge's directions on the nature of the attack was as follows:[85] Mr Lingman does not have to stand by while he or anyone else isunder attack or the threat of an attack. On the contrary, he is entitled to usereasonable force to defend himself or another person from attack or the threatof it.[87] The circumstances include Mr Lingman's beliefs as to the natureand seriousness of any threat, and his beliefs as to its imminence and thecourses of action available to avoid or combat it.[115] To decide if the force is reasonable, you need to consider the perceivedimminence and seriousness of the attack or threatened attack. You are lookingat whether the defensive action taken was reasonably proportionate to theperceived danger. You can also consider whether Mr Lingman had otherreasonable options open to him and whether he would have been aware ofthese options, whether he had the time to take up those options. So, you haveto look at the imminence of the threat and the danger it posed as Mr Lingmanunderstood the circumstances to be at the time.[49] We are satisfied that the Judge gave adequate directions regarding theconsiderations relevant to pre-emptive strike; how imminent the apparent peril was,the nature and seriousness of the apparent threat, and the alternative courses of actionavailable.15 See generally R v Wang [1990] 2 NZLR 529 (CA) at 536 and Leason v Attorney-General[2013] NZCA 509, [2014] 2 NZLR 224 at [54].[50] We consider these directions amounted, in practical terms, to asking the juryto consider whether self-defence was established based on pre-emptive strike.We accordingly do not accept the appellant's contention that the Judge ought to havedirected about pre-emptive strike in more detail.Conclusion on ground one[51] We consider the Judge's directions, summing up, and question trail onself-defence was adequate. The appellant was unable to point to any error that led toa miscarriage or created a real possibility that the trial was unfair. Ground one is notupheld.Ground two — the prejudice and sympathy directions[52] The appellant contends that the Judge's general prejudice and sympathydirections were insufficient to deal with the jury's likely emotional reaction toMr Lingman's post-death conduct. Specifically, the Judge did not tailor the prejudicedirection in regard to Mr Lingman's actions in concealing the body in the freezer byamputating his legs with a chainsaw.Analysis[53] The Judge directed on post offence conduct as follows:[129] The Crown says, in relation to intention, that a person who fires a rifleat someone can be taken to intend to kill them. And the Crown highlights atthis point what Mr Lingman did after he shot [the victim], and you are askedto infer that these things are consistent with someone who has intended to kill.[130] The defence case again relies on you accepting what Mr Lingmansaid, which is he only intended to disarm [the victim], not to kill him. You areasked to accept that the post-shooting events were both clumsy and ineffectivein terms of disposing of evidence, which is more consistent with an attempt topreserve the position until the child's position could be secured when hismother returned from overseas.[131] You are asked to accept that although, given the outward appearanceof coping, this was not in fact how Mr Lingman was; he was taking diazepamand self-medicating — trying to forget.[132] You are not permitted to jump to a conclusion that Mr Lingman isguilty based solely on his conduct after [the victim] was shot. The mostrelevant consideration is what you think Mr Lingman intended at the time hepulled the trigger, however, you are entitled to take into account Mr Lingman'sconduct after [the victim] was shot to determine whether Mr Lingman had thenecessary murderous intent and whether he genuinely perceived there to be athreat.[54] The evidence of Mr Lingman's post offence conduct was plainly admissibleand is not in dispute. As the Crown submitted, the directions met the requirements ofthe case law. The Supreme Court of Canada made the following observations inR v White,16 which have been approved by this Court:17 [T]here is a risk that juries might jump too quickly from evidence ofpost-offence conduct to an inference of guilt. However, the best way for atrial judge to address that danger is simply to make sure that the jury are awareof any other explanations for the accused's actions, and that they know theyshould reserve their final judgment about the meaning of the accused's conductuntil all the evidence has been considered in the normal course of theirdeliberations. Beyond such a cautionary instruction, the members of juryshould be left to draw whatever inferences they choose from the evidence atthe end of the day.[55] At [132] of the Judge's summing up (above) the jury was warned againstjumping to a conclusion of guilt based solely on the post-offence conduct, and at[130]–[131] was invited to consider the alternative explanations for that conduct.Additionally, the Judge's opening remarks included a careful warning to the jury tokeep an "open mind about the case" and "set aside feelings of prejudice, or anyfeelings of sympathy". They were instructed to "weigh the evidence in a clinicalfashion, without emotion and that is because emotions impair judg[e]ment". And insumming up, the Judge said:[55] The next point I want to touch on is feelings of prejudice andsympathy that often arise in criminal case. In this case, there would be plentyof opportunity for those sorts of feeling to arise.[63] It would be quite wrong however, for you to let feelings of sympathyor prejudice influence you. Society requires judges, you and me, to put ourfeelings, our personal likes and dislikes, to one side. Society expects us tofocus only on the evidence and the issues we have to decide.16 R v White [1998] 2 SCR 72.17 At [57], approved by this Court in R v Reynolds [2017] NZCA 611 at [39]–[41] and Roberts v R[2019] NZCA 502 at [24].[56] We consider these directions, and particularly those directed at the post-offenceconduct set out above at [53] were sufficient to address any unfair prejudice arisingfrom the Crown's emphasis on what Mr Lingman did following the killing. We arealso conscious of the fact that these directions regarding inferences were developed inconsultation with trial counsel.18[57] We agree with the Crown submission that as the jury had been directed not tolet prejudice or sympathy drive their decision making, a stronger direction riskedinviting the jury to disregard the evidence that Mr Lingman's actions were explicableas he was preserving the position by freezing the evidence until his partner returnedfrom overseas. We note there is no record of any request by Mr Lingman's trialcounsel for the further direction now contended for, and we are of the view that afurther direction was not necessary.[58] We consider that the Judge gave adequate prejudice and sympathy directionswhich ensured that the jury would not be overwhelmed by prejudice arising fromMr Lingman's post offence-conduct. It was admissible evidence and relevant to theissue of murderous intent.[59] We dismiss this ground of appeal.Ground three — admission of photograph[60] The last ground of appeal concerns the admission of a photograph to the jurywhich showed the victim's body as it was found by police — in a chest freezer withlegs amputated on top of him, and his face covered in blood.[61] The appellant submits that the post-mortem photograph was unfairlyprejudicial and should not have been admitted because:(a) The photograph was irrelevant to the central issue at trial, self-defence,and the injuries were unrelated to the cause of death.18 See Bench Notes of Harland J, Day 10 dated 22 March 2021 at [10] and Day 13 and 14 dated 26March 2021 at [12].(b) The defendant accepted that he had chain sawed the deceased's legs offand placed the body into the freezer after his death.(c) Showing the photograph was not necessary to describe the injuries thathad caused the death. It is notable that the Crown prosecutor did notrefer the pathologist to the photograph during his evidence.(d) The photograph was adequately described in the evidence of Dr Glenn,Ruben Miller and the attending Police officers.(e) The photograph had no probative value and it only served to excitedstrong feelings of horror, disgust and anger in the jury, which wasunfairly prejudicial.[62] We consider that the photograph was admissible and probative for the reasonthe Crown submits. The photo was illustrative of a core component of the Crown case,that Mr Lingman's callous treatment of the victim's body supported an inference thathe killed with intent rather than in self-defence.[63] Equally, it could also support the defence case that this was a killing inself-defence and the post-offence conduct of Mr Lingman showed there had been noplanning involved and he was preserving the evidence until his childcareresponsibilities were taken over on the return of his partner.[64] We accept that the impact of Mr Lingman's conduct post-death was generallyshocking. However, while the facts were gruesome in nature, the photo was clean andclinical in its presentation and to a large extent, in our view, removed the moredisturbing mental image of Mr Lingman's actions.[65] We consider that the directions about the photographs, in addition to thegeneral sympathy and prejudice directions, adequately dealt with any unfairlyprejudicial effect of the evidence.[66] We consider no miscarriage of justice occurred.Conclusion[67] The appeal against conviction is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent