ROSS v R [2017] NZCA 587

ROSS v R [2017] NZCA 587 [12 December 2017]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 ZEALANDCA598/2016[2017] NZCA 587BETWEEN JOHN WILLIAM ROSSAppellantAND THE QUEENRespondentHearing: 2 October 2017Court: Winkelmann, Wylie and Whata JJCounsel: M J Phelps for AppellantZ R Johnston for RespondentJudgment: 12 December 2017 at 3 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] In September 2016 the appellant, Mr Ross, was found guilty of seven chargesof historic sexual offending following a trial before Judge Rea and a jury in theDistrict Court at Napier.1 He was subsequently sentenced to four years and sixmonths' imprisonment.2[2] Mr Ross now appeals his convictions alleging both trial counsel error andinadequacies in the Judge's summing-up.Background facts[3] When she was five, following her parents separation, complainant M went tolive with her father, T; his new partner, B; and B's two children from an earlierrelationship — complainant R, and RE.[4] M and R, both girls, were of a similar age. RE, a boy, was two years older.[5] In 1980, as a result of complications with B's pregnancy, the three childrenwere sent by T and B to live with others for short periods of time. They first spenttime with relatives near Wellington, but later they were sent to a state forest settlementin Northland to stay with M's mother, H, and her then partner — Mr Ross.[6] M and R were eight years old at the time. RE was 10.[7] B recalled that the children were sent to stay with H and Mr Ross at the stateforest settlement and each of the children had memories of this. One described theforest as being a "cool place to play in" — a novelty for children from the city. H alsorecalled the children staying with her and Mr Ross.[8] As a result of being moved around, the three children attended a number ofdifferent schools over this period. At trial each remembered, to a greater or lesserdegree, attending the local school while staying in the state forest settlement.M remembered "the longest bus ride on gravel roads". She also remembered herachievements at the school. R had vague memories of the school corridor, althoughshe was not sure, given the number of schools she had attended. RE remembered the1 One charge of attempted rape, five charges of indecent assault and one charge of inducing anindecent act.2 R v Ross [2016] NZDC 22105.bus trips to the school and he said that all three children had gone to the school.H recalled the children attending the local school and the names of the children wereon the roll of the school at the relevant time — September–October 1980. Theenrolment details recorded that the children had been enrolled by Mr Ross.[9] Both M and R described sexual offending against them individually byMr Ross during their stay at the state forest settlement:(a) M said that on a number of occasions Mr Ross would pull her on top ofhis body while he was in bed and hold her there, rubbing his body andhis erect penis against her until he ejaculated. She also said that heindecently assaulted her while bathing her, touching her genitalia withhis fingers.(b) R described Mr Ross touching her nipples and vagina and placing herhand on his penis. She also described being pulled on top of Mr Rosswhen he was in bed in the master bedroom.[10] Some weeks after B had given birth to the new baby, the three children returnedto live with T and B in South Auckland. R gave evidence of an incident when she wasliving in this household. She said that Mr Ross came to visit and that he stayed thenight. She said that she awoke to find somebody smoking in her room. She said thatit was Mr Ross and that he got into her bunk bed and attempted to put his penis intoher vagina. Both B and RE remembered that Mr Ross came to stay in the house inSouth Auckland. B said that she worked on night duty and that she came home onenight to find him in the house.[11] M and R gave statements to the police in 1996–1997. The police made initialenquiries but the investigation was not further actioned at that time. Rather, an errorin the police's administration system resulted in the file being closed. It was onlyreopened following an audit in 2010; Mr Ross was not spoken to by the police until2012.[12] Mr Ross was initially charged in May 2012 with sexual violation by rape of Rand six charges of indecency against M and R. He was tried in September 2013 andfound guilty of all charges. This Court quashed those convictions in August 2015 onthe basis that errors by then trial counsel had caused a miscarriage of justice.3 A newtrial was ordered.[13] Mr Ross was retried in September 2016 before Judge Rea and a jury.[14] Mr Ross denied all of the alleged offending. His primary defence at trial wasthat the recollections of the two complainants and RE were unreliable. He gaveevidence. He denied that the three children had ever lived with him at the settlementin the state forest. He denied enrolling the children at the local school. He said thathis efforts to prove that the children had not lived with him had been hampered by thepassage of time, and he asserted that if the police had properly investigated theallegations earlier, there would have been witnesses available who would haveconfirmed his version of events. He further said that he had never visited T and B'shouse in South Auckland except in the company of H, and that he had never stayedovernight at the house.[15] In the course of the trial:(a) the charge of rape was amended to a charge of attempted rape;4(b) the prosecutor was permitted to rely on cross-propensity evidence —namely the accounts of the two complainants;5 and(c) the dates in two of the charges were amended, without objection.6[16] As noted, Mr Ross was convicted on all charges and later sentenced to fouryears and six months' imprisonment.3 Ross v R [2015] NZCA 387.4 R v Ross [2016] NZDC 18000 [Ruling 1].5 R v Ross [2016] NZDC 18138 [Ruling 3].6 R v Ross [2016] NZDC 18139 [Ruling 4].Evidence on the appeal[17] Mr Ross alleges error by his trial counsel, Mr Fairbrother QC. He asserts thatMr Fairbrother failed to call possible defence witnesses and that his closing address tothe jury was inadequate. Evidence was called before us in relation to these mattersand also in relation to the delay in bringing the charges, which Mr Ross says prejudicedhis defence and which he says the Judge did not adequately deal with in his summing-up.[18] Mr Ross filed an affidavit. He said that he wanted to be actively involved inthe retrial strategy and preparation. He asserted that if the matter had been properlyinvestigated at the outset, information would have been available from:(a) T, who had died in about 2011;(b) residents at the state forest settlement including a Ms Mason, who wasthe storekeeper at the relevant time. Ms Mason had died beforeMr Ross was charged;(c) documentary records including his employment records and schoolrecords from each of the schools the evidence suggested the childrenwere enrolled at; and(d) photographs of the state forest settlement.[19] Mr Ross said he wanted to give evidence and that he anticipated his evidencewould be bolstered by other defence evidence. In particular, he says he anticipatedthat evidence would be called from:(a) Ms Whittaker, a school principal;(b) Mr Tolliday, a former resident at the state forest settlement;(c) Ms Honore, also a former resident; and(d) Mr Bills, a private investigator who had been retained by the defence.[20] Mr Ross deposed that Mr Fairbrother told him at Court, immediately beforeclosing the defence case, that no further defence witnesses would be called. He saidthat he did not sign any written instructions that the witnesses should not be called andthat it was a unilateral decision by Mr Fairbrother not to call them.[21] Mr Ross asserted that he provided a detailed analysis of the Crown case forMr Fairbrother. He said that, in closing, Mr Fairbrother did not adequately put hisdefence to the jury and, in particular, that Mr Fairbrother failed to identify variouscontradictions in the Crown case; failed to adequately identify why it was unlikely thatthe complainants had stayed with Mr Ross and H; failed to adequately identify why itwas unlikely that Mr Ross had stayed at T and B's house in South Auckland overnightwithout his wife; and failed to adequately identify the failure by the police toinvestigate the case earlier including the ways in which Mr Ross' defence had beenprejudiced as a result.[22] Mr Fairbrother also filed an affidavit and he was cross-examined before us. Heaccepted that Mr Ross was involved in every decision about the trial and asserted thathe took Mr Ross' instructions on every point that arose. Mr Fairbrother said that hemet with Mr Ross on 6 September 2016 shortly before the trial was due to commence,and that he handed to him a summary agenda setting out his proposed trial strategy.Mr Fairbrother also gave Mr Ross on 6 September written advice that summarised thekey Crown evidence and noted Mr Ross' instructions to subpoena various prospectivedefence witnesses, including Ms Whittaker, Mr Tolliday and Ms Honore.Mr Fairbrother noted that the purpose of calling these witnesses was to prove anegative — namely that M and R did not live with Mr Ross in the state forestsettlement. He recorded his view that there was limited assistance in the anticipatedevidence, unless Mr Ross could challenge the accuracy of the local school's enrolmentrecords. Mr Fairbrother expressed the opinion that calling the proposed witnessesmight only serve to highlight to the jury that the children had stayed with Mr Ross fora period of time. He considered that the jury would be likely to accept the schoolrecord. He noted that Ms Whittaker could provide evidence that RE was enrolled atanother school at the same time, but Mr Fairbrother observed that the records from thelocal school clearly showed that the children were enrolled there for a short period oftime. Mr Fairbrother expressed the view that, rather than highlight this to the jury, itwould be better to have the local school record produced as an agreed fact. Heexpressed the view that there was a risk that the defence could become overlycomplicated and that this might only highlight various issues in the jurors' minds,which could be adverse to Mr Ross. Mr Fairbrother expressed the view that there wasno real benefit in calling the proposed witnesses.[23] Mr Fairbrother said that at the meeting, Mr Ross agreed with his advice.[24] Although there is no signed record of Mr Ross' agreement, Mr Fairbrother'srecollection is consistent with an email Mr Fairbrother sent to Mr Bills on 7 September2016. In that email, Mr Fairbrother recorded that Mr Ross had met with him theprevious day and that there was to be a change in trial strategy. Rather than callingthe people that Mr Bills had spoken to about giving evidence, the plan was to getMr Bills to give evidence about the enquiries he had made.[25] On 14 September 2016 Mr Bills flew to Napier, in anticipation of givingevidence. By this stage the Crown case had concluded and Mr Ross had already givenhis evidence. Mr Fairbrother met Mr Bills. Mr Fairbrother said that this meetingsimply confirmed his view that Mr Ross would be ill-advised to call Mr Bills as awitness. He sent an email to Mr Ross at 10.14 pm that evening, setting out his advicethat it would be unwise to call Mr Bills and his reasons for taking that view.Mr Fairbrother also recorded that Ms Whittaker was on standby to give evidence byaudio-visual link if required. He recorded his opinion that, if the proposed defencewitnesses were not called, the jury would be "happily left with the uncertainties andcontradictions of the evidence of [the complainants]". Mr Fairbrother took the viewthat if the witnesses were called, there was a risk that they might add certainty to someof the uncertainties the jurors would otherwise face.[26] Mr Ross replied at approximately 3 am on the morning of 15 September 2016.He acknowledged Mr Fairbrother's advice and implicitly accepted the same. He alsogave Mr Fairbrother instructions about what he should say in closing. In summary, hewanted Mr Fairbrother to highlight the contradictions in the Crown case, in anendeavour to persuade the jury that they could not rely on the complainants' evidence.[27] The emails are contemporary documents and they are persuasive. To the extentthat there is a conflict between the evidence of Mr Ross and Mr Fairbrother, we preferMr Fairbrother's evidence. It is borne out by the emails.[28] Mr Fairbrother's evidence is also supported by an affidavit which was filed byMr Bills. He confirmed that he spoke to each of the witnesses that Mr Ross thoughtmight be of assistance, and said his view was that the information they were able toprovide was likely to be more damaging than helpful to Mr Ross' defence. He alsoexpressed the view that there was little he could add to Mr Ross' defence.Nevertheless, he confirmed Mr Fairbrother's evidence that he flew to Napier on14 September 2016 and that he met with Mr Fairbrother that evening. He commentedthat any helpful evidence he might be able to give was limited, and that there was arisk that he might have to give evidence damaging to Mr Ross' defence undercross-examination. Mr Fairbrother told him that he (Mr Fairbrother) needed to takeinstructions from Mr Ross before releasing him. Mr Bills said that he agreed to beavailable to meet with Mr Ross the following morning if Mr Ross wished to speakdirectly to him. He says he did not hear anything further, and that he subsequently leftNapier. He recorded that his investigations were extensive, but that he was unable tofind any evidence that he thought would assist Mr Ross' defence, and that it was clearto him that the only persons who were willing, albeit reluctantly, to help —Mr Tolliday and Ms Honore — could potentially have jeopardised Mr Ross' defence.Analysis[29] As noted, Mr Ross was first charged in May 2012, before the commencementof the second stage of the Criminal Procedure Act 2011. As a result, the appeal fallsto be dealt with under the law as it stood prior to 1 July 2013.7 Accordingly, pt 13 ofthe Crimes Act 1961 applies. Under those provisions an appellate court is obliged toallow an appeal if of the opinion that, inter alia, a miscarriage of justice has occurred.87 Criminal Procedure Act 2011, s 397.8 Crimes Act 1961, s 385.A miscarriage of justice in terms of pt 13 is something more than an inconsequentialor immaterial mistake or irregularity.9 There are generally two ingredients which haveto be shown. This was noted by Tipping J in R v Sungsuwan:10First, something must have gone wrong with the trial or in some other relevantway. Second, what has gone wrong must have led to a real risk of an unsafeverdict. That real risk arises if there is a reasonable possibility that a not guilty(or a more favourable) verdict might have been delivered if nothing had gonewrong. It is, of course, trite law that an appellant does not have to establish amiscarriage in the sense that the verdict actually is unsafe. The presence of areal risk that this is so will suffice.[30] Against this background, we consider Mr Ross' two alleged errors — first, trialcounsel error and, secondly, deficiencies in Judge Rea's summing-up.Trial counsel error[31] Trial counsel error is not itself a ground of appeal.11 The enquiry called for,when such an assertion is made, is not into the competence of counsel but ratherwhether the resulting verdict is unsafe through any deficiency in the trial, however itwas caused. Gault J, in R v Sungsuwan, summarised the position as follows:12[W]hile the ultimate question is whether justice has miscarried, considerationof whether there was in fact an error or irregularity on the part of counsel, andwhether there is a real risk it affected the outcome, generally will be anappropriate approach. If the matter could not have affected the outcome anyfurther scrutiny of counsel's conduct will be unnecessary. But whateverapproach is taken, it must remain open for an appellate court to ensure justicewhere there is real concern for the safety of a verdict as a result of the conductof counsel even though, in the circumstances at the time, that conduct mayhave met the objectively reasonable standard of competence.[32] Reasonable tactical decisions, even if they could possibly have affected theoutcome of the trial, will not necessarily establish a miscarriage of justice. This Courthas noted as follows:13[74] There are trial decisions on which there is some discretion for trialcounsel. As this Court has said previously, an appeal is not the time for "aminute dissection of whether some aspects could have been dealt with9 R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30].10 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] (footnote omitted).11 At [7].12 At [70]. See also R v Scurrah CA159/06, 12 September 2006 at [17].13 Hall v R [2015] NZCA 403 (footnotes omitted). See also R v Scurrah, above n 12, at [18]; andHamdi v R [2017] NZCA 242 at [48].differently or better". The context of the instruction will also be relevant. Thisposition reflects both the practicalities of running a trial and the nature ofcounsel's obligations.[75] As this Court said in R v Pointon, "[t]he effective conduct of a client'scase would be impossible if he had to be consulted at every turn duringpreparation and at the trial itself". And, the authorities are clear, counsel haveto exercise some judgment on matters such as the approach to cross-examination. Both of the cases on appeal illustrate this point. Mr Hall, forexample, on one aspect submits trial counsel's cross-examination could havebeen "stronger" although there is no suggestion the defence was not put. Thatis not a proper basis for challenging counsel conduct.[33] As noted, Mr Ross denied the offending. Mr Bills was engaged in an attemptto confirm that the complainants had not resided with Mr Ross at the state forestsettlement. He reported to Mr Fairbrother on 26 April 2016. His report detailed thevarious persons he had spoken to and summarised the evidence that might be available,including from Mr Tolliday and Ms Honore. Mr Bills expressed reservations abouthow helpful they might be.Calling witnesses[34] In the summary agenda prepared for the meeting of 6 September 2016 — see[22] above — Mr Fairbrother summarised the anticipated evidence and set out his trialstrategy. He suggested that the proposed witnesses would be of little or no assistance.Mr Fairbrother has given evidence, which we accept, that Mr Ross agreed with hisstrategy. The possibility was, however, left open that Mr Bills might give evidence —see [24] above — to detail the enquiries he had made, but Mr Bills and Mr Fairbrotheragreed that this could be potentially damaging to Mr Ross' defence. Mr Bills wouldnot be able to say in evidence that he had found nothing to suggest that any of thecomplainants had ever resided with Mr Ross at the state forest. As noted above at[25], Mr Fairbrother emailed Mr Ross on 14 September 2016 setting out his views,and the reasons for them. He suggested that it would be unhelpful and potentiallydamaging if Mr Bills were to give evidence. While Mr Fairbrother did not formallyseek instructions in the email, he offered to make himself and Mr Bills available todiscuss the position with Mr Ross the following morning. It is clear that Mr Rossaccepted this advice. As noted above at [26], he responded by email in the early hoursof the morning, expressing the view that it was a "pity" that Mr Bills could not giveevidence but nevertheless indicating acceptance of the advice he had been given,"providing [Mr Fairbrother] can highlight the contradictions with sufficient emphasisto convince the jury they cannot rely on [the] Crown evidence". He did not ask to seeMr Fairbrother and Mr Bills later that morning.[35] We have rejected Mr Ross' assertion that he was surprised when, on15 September 2016, Mr Fairbrother advised the Court that no further defence evidencewould be called — see above at [20]. It is clear from the contemporaneous documentsthat Mr Ross was in agreement with Mr Fairbrother's trial strategy, and that he hadmade a fully informed decision in that regard. In any event, a decision whether to callwitnesses, other than the defendant, is not generally a fundamental trial decision butrather one left for counsel.[36] We accept the submission made by Mr Phelps for Mr Ross that Mr Fairbrotherdid not follow best practice. He did not prepare briefs for the prospective witnesses.14Nor did he obtain signed instructions from Mr Ross.15 However, he hadcomprehensive outlines prepared by Mr Bills of what each witness would likely sayand he did obtain confirmation of his view that the witnesses should not be called.Further, a failure to prepare briefs and to obtain signed instructions, even if proved, donot of themselves establish a miscarriage of justice.[37] Regardless, we have considered the proposed evidence each of the availablewitnesses might have been able to give and we do not consider that their evidencewould have materially advanced Mr Ross' defence:(a) Mr Tolliday's memory was unclear. He did recall children living withMr Ross for a period of time, possibly a few months. He recalled twochildren — possibly three. While he remembered girls, he told Mr Billsthat there could have been a boy. His description of the children wasnot inconsistent with the complainants and RE. He was shown a photoand he agreed that the children in that photo could have been thechildren he remembered. It seems, however, that the children heidentified were Mr Ross' daughters who, on occasion, came to live with14 Ede v R [2010] NZCA 358, [2010] 3 NZLR 557 at [57].15 See R v Chambers [2011] NZCA 218 at [1].him. There was a risk that this evidence would not necessarily havebeen accepted by the jury. Mr Ross was only allowed limited access tohis children and not for a period of months. This risk was understoodand acknowledged by Mr Ross. In his email to Mr Fairbrother sent at3 am on 15 September 2016, he acknowledged that "taken at face value[Mr Tolliday's] comments seem to support the Crown".(b) Ms Honore could not recall any children living with Mr Ross. Hermemory, however, was limited. She did not recall Mr Ross' name,although she remembered that she disliked him. Nothing else that shetold Mr Bills would have assisted Mr Ross' defence. Ms Honore dididentify one photograph shown to her of children, saying that it haddefinitely been taken at the state forest settlement.(c) Ms Whittaker's evidence would have been to the effect that RE wasenrolled at another school during the period of the alleged offending.This was not necessarily inconsistent with the Crown case. The namesof all three children were on the roll at the local school in the state forestsettlement at the relevant times. Any advantage to the defence throughbeing able to show that RE was on the roll at another school at the timewould have been undermined by Ms Whittaker's anticipatedacknowledgement that it was possible for children to be on the rolls ofmore than one school, and that being on a roll does not equate withattendance.[38] In our view, the proposed witnesses could not have materially advancedMr Ross' defence and there were distinct risks in calling them. There was a risk thatboth Mr Tolliday and Ms Honore would have given evidence adverse to Mr Ross.While that evidence would have been irrelevant and inadmissible, there wasnevertheless the possibility that adverse matters may have been inadvertentlymentioned in the course of the trial. That risk was a factor which was properly takeninto account by Mr Fairbrother. The proposed witnesses would not have materiallyadvanced Mr Ross' defence, and the fact that they were not called does not establish amiscarriage of justice.Defence closing[39] It was also asserted for Mr Ross that Mr Fairbrother failed to adequately putthe defence in closing. Mr Phelps referred to the early morning email Mr Ross sent toMr Fairbrother in advance of his closing address, outlining the matters that he wantedMr Fairbrother to cover. Mr Phelps said that Mr Fairbrother did not adequately addressall matters and that his failure to do so resulted in a miscarriage of justice.[40] Appellate courts rarely question the advocacy style of trial counsel when errorsin closing are alleged.16 This Court has, however, acknowledged that there are somefactors that trial counsel must cover to provide an adequate closing:17[C]ounsel must always tailor their address to the jury to the circumstances ofthe case and the evidential issues which arise in it. Therefore, trial counsel inclosing is required to highlight the weaknesses and inadequacies of the Crowncase and/or to indicate the factors in the defence case which should haveprecluded the jury from being satisfied of essential ingredients to the requisitestandard.[41] In the present case, Mr Ross wanted Mr Fairbrother to emphasise thecontradictions and inconsistencies in the Crown case, and to identify certain matterssaid to be implausible in the Crown's evidence. Specifically, that it was unlikely thecomplainants came to stay with him in the state forest settlement and that it wasunlikely he had stayed at their South Auckland home overnight without his wife beingpresent.[42] Mr Fairbrother, in closing, emphasised the defence — namely, that Mr Rosscould not have committed the offences as the complainants never stayed with him, norhe at their home in South Auckland. He expressly did not go through all theinconsistencies alleged in the Crown evidence. Rather he said as follows:I spent a lot of last night reading through the notes of evidence. They're about150 odd pages. You'll have them there and I've highlighted lots of passageswhere there's contradictions, uncertainties and suggestions of collusionbetween the three children and I've considered whether I should pickup my notes and read these passages to you but it would bore you to death,with the greatest respect.16 E (CA113/2009) v R (No 2) [2010] NZCA 280 at [28].17 At [27] (footnotes omitted).[43] Mr Fairbrother did specifically mention some inconsistencies in the Crowncase. By way of example, he referred to inconsistencies in the Crown's evidence asto where the complainants were living before coming to the state forest settlement,and as to whether M had a birthday while staying at the state forest settlement. Further,Mr Fairbrother highlighted that there were inconsistencies in the various accounts offamily dynamics and of the location of the forest. He highlighted furtherinconsistencies between the evidence of both M and R and other Crown witnesses. Heargued that the complainants' evidence generally was unreliable, suggesting that thepassage of time had affected their memories:You know, I could spend hours picking holes in the evidence and I'm nottrying to just belittle [R, M or RE] but you ask any person outside of your jurywhat were you doing as an eight year old? Ask them some 30 years laterand would you act on what they tell you and make a decision of the enormityof this? I suggest not.And:36 years later we need more than just fragile memory to convict a man suchas Mr Ross on charges such as these.[44] In relation to the South Auckland offending, Mr Fairbrother emphasised that Hhad stated in evidence that Mr Ross had only gone to the South Auckland address withher, and that B had indicated in an earlier statement that she did not recall Mr Rossever staying overnight at the South Auckland address. Again, this was a directchallenge to the offending alleged to have occurred at that location.[45] Mr Fairbrother identified evidence that was missing, and highlighted aspectsof the Crown evidence that favoured the defence. For example, he referred to aphotograph of R and RE allegedly taken outside Mr Ross' house in the state forestsettlement in 1981, which was produced by the Crown in the course of the trial. Henoted Mr Ross' evidence that his house did not have steel railings like those shown inthe photograph. Mr Fairbrother emphasised that Mr Ross' evidence in this regard wasessentially undisputed.[46] In our judgment, Mr Fairbrother's closing clearly presented the defence case,and clearly highlighted weaknesses in the Crown's case. Mr Fairbrother was notrequired to close the case with any particular emphasis, or to canvass every detailMr Ross wanted him to cover. Nor was Mr Fairbrother required to slavishly followMr Ross' instructions on matters of style.18 Providing the fundamentals were covered,the details of the closing and its style were counsel's prerogative.19[47] We are satisfied that Mr Fairbrother's closing put the appropriate challenge tothe Crown's evidence and that Mr Ross' defence was made clear to the jury.Mr Fairbrother's decision not to labour every individual inconsistency was a tacticaldecision that was reasonable in the context of this trial. It is not otherwise appropriatefor us to engage in a minute dissection of the style of Mr Fairbrother's closing.[48] We reject the ground of appeal alleging trial counsel error and consequentmanifest injustice.Inadequacies in the summing-up[49] Mr Phelps submitted that there were three inadequacies in the Judge'sdirections in his summing-up — first, in relation to the warning given under s 122 ofthe Evidence Act 2006 as to the reliability of Crown witnesses; secondly, in relationto the cross-propensity evidence; and, thirdly, in relation to various changes in datesin the indictment. We deal with each in turn.Reliability warning[50] A core concern for Mr Ross was that the passage of time made the trial moredifficult for him. In his evidence he explained that he had attempted to find archivedrecords from the New Zealand Forest Service, and from the various schools which thecomplainants said they had attended, which might have assisted him. He criticised thepolice for not conducting a thorough investigation following the 1996–1997complaints, and suggested that some of the locals who could have assisted him havesince died. That theme was taken up by Mr Fairbrother. In closing, he emphasisedthe efforts Mr Ross had gone to to try and prove that the complainants never lived withhim, and he noted that the complainants could not produce any school reports ordrawings that they brought home from the local school at the state forest settlement.18 R v Boyd [2007] NZCA 507 at [16]–[17].19 Duncan v R [2011] NZCA 307 at [27]; and R v Jeakings CA231/98, 30 November 1998.He emphasised that given the passage of time, their evidence was "inherentlyunreliable". He referred to the complainants' "fragile" memories, and he suggestedthat more was required to convict Mr Ross of the charges he faced.[51] The alleged offending occurred some 36 years prior to the trial. Clearly,Judge Rea was required to consider warning the jury of the need for caution indeciding whether to accept the evidence of the complainants and the weight to be givento their evidence.20 In this regard, the essential question the Judge was required toconsider was whether the jury was likely to be materially assisted in its considerationof the evidence by a reminder from him that caution was required in dealing with theevidence.21 In the circumstances of this case, Judge Rea also needed to considerwhether he should make it clear to the jury that it should bear in mind the prejudice tothe defence arising from the passage of time.[52] The premise of s 122, as explained by the Supreme Court in CT v R, is that itis "not always appropriate to leave it to counsel to point out the risks associated withparticular types of evidence".22 Instead, in certain circumstances the required warningshould have the "imprimatur of the judge".23 In CT the Court was critical of the s 122warning given there. It observed as follows:[55] The direction did not mention at all the effect of time on memory; thisdespite the deviation between the complainant's evidence on the one hand andher earlier statements on the other. There was no indication of a need forparticular concern about the new count of rape despite it (a) having been addedto the indictment only at the end of the prosecution case, and (b) being basedon an allegation never previously made prior to the complainant's evidence inchief. There was no acknowledgement that the appellant's own memory, andthus his ability to mount an effective defence, may have been compromisedby the effluxion of time. And, as well, the Judge did not point out to the jurythe other respects in which there may have been prejudice to the defendantrelating to changed physical characteristics and dead witnesses. That thoserisks were seen as insufficiently specific and cogent to warrant a stay did notmean that they were entirely negligible. Depending on the tone of the Judge'svoice, the references to being "bound" and obliged by the Evidence Act togive a warning may have conveyed to the jury an impression that the Judgewas distancing himself from the substance of the warning. Judges should takepersonal responsibility for the warning and should thus be careful to avoidgiving such an impression.20 Evidence Act 2006, s 122.21 B (CA58/2016) v R [2016] NZCA 432 at [59].22 CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [50].23 At [50].[53] If a judge considers a warning is needed, what is required is a warning of theneed for caution, an explanation as to why such caution is necessary and identificationof the risks.24 There can, however, be a concern that in certain cases (for examplewhere reliability issues are already very obvious to the jury) the judicial imprimaturcan artificially tip the scales against witnesses.25 That concern was real in this case.[54] Judge Rea determined that it was appropriate to give a warning to the jury. Hedid so on two occasions:(a) In his opening address to the jury, Judge Rea said as follows:You have to decide what you believe and how much you believe andit won't have escaped your attention that the allegations here go backa considerable time, to 1980. You will have to bear in mind as youare listening to the evidence that people are dredging up in theirmemories, things that have gone on a very long time ago as theyallege. That you are being asked to focus in September of 2016 onevents that have occurred in 1980 or thereabouts. You will have tofactor in peoples' memory, whether their memory has played tricks onthem over the years. Whether they have become more sure of theirpositions or less sure of their position as time has gone on. You willhave to make all these sort of assessment. I will have more to sayabout that at the end but it probably appeals to you, just as a matter ofcommon sense, that you are going to have to scrutinise the evidencethat you hear from any witness, very closely indeed bearing in mindthe length of time ago these allegations arose.(b) In his summing-up to the jury, Judge Rea said:[10] Now I want to say something to you about the length of timethat it has taken for this case to come to Court. We do not have in thiscountry what is known as a statute of limitations. In other words, thereis not a particular time after which cases cannot come before theCourt. So there cannot be any criticism that this has taken as long asit has to come just on a strictly legal point of view. And also criticisingauthorities or anybody else involved in it for the delays that areinherent in this case, do not actually achieve a great deal from yourpoint of view. You have to make your decision in relation to thesecharges based on the evidence that you have heard and that has beengiven. Please do not guess or speculate or wonder about what mighthave happened if other evidence had been called; if other people hadcome forward, if there were other circumstances. You are confrontedwith making your decision based on the evidence you have here.However, this evidence is very, very old and there really is a need forcaution when you are considering whether you accept the evidence24 At [54].25 B (CA58/2016) v R, above n 21, at [61].against the defendant in relation to the allegations that are made,simply because of the age of it. And also you need to give caution asto what weight you give the evidence because that is based on the ageof the allegations.[11] You have to determine the case before you, as I said, not basedon guesswork or speculation but we simply cannot overlook the factthat this has taken as long as it has to come to fruition. The fact thatit is 36 years old does not amount to a defence to Mr Ross if the Crownare able to prove to you that these one or more charges have beenestablished to a level where you are sure. But when you areconsidering this case, please remember that peoples' memories do letthem down. We know that simply from our own experience and thatis a common sense thing that you as the jury will be able to bring toyour deliberations.[12] There can be situations as Mr Fairbrother submitted to you,where people for the best will in the world, align themselves with aparticular viewpoint because they think they can remember andremembering it in that way is the best way for everyone around them.You need to subject what each of these witnesses has said to a gooddeal of scrutiny before you are prepared to act on it to the detrimentof Mr Ross. Having said that, if, after you consider the evidence youare sure that the charges are proved, you cannot shy away from it onthe basis of this is ridiculous, it has taken 36 years. That is not a basisin law or in fact why you would not come to a verdict if there wassufficient evidence for you to do so.[13] Obviously in situations such as this, it is difficult when peopleare looking back as they have to here for this length of time, todetermine what the position was. It is your job to decide whether theCrown has proved these charges and you have to do it to the levelwhich I am going to explain to you now.(Emphasis added.)He also said:[52] Now as far as Mr Fairbrother is concerned. He has made itvery clear to you that Mr Ross has never accepted that these childrenwere there. He says that 36 years on it has made it extraordinarydifficult to try and find information to support his position but thatright from the outset, when he was first confronted with theseallegations, his position has been consistent. That they were not thereand he never, ever stayed at [South Auckland] on his own.Mr Fairbrother says to you that no matter how you dress it up, thecircumstances around the children and those who had the immediatecare of them, was unstable and he extended that to H, who at the timeof course was living with Mr Ross. He submitted to you that no matterhow you look at it, this was not a normal situation. These childrenwere from pillar to post a good deal of the time and that there is nocertainty at all that they were in that area at [the state forest settlement]nor that Mr Ross was at [South Auckland] in the way that thewitnesses have said.[53] Essentially Mr Fairbrother says to you amongst other thingsthat time can play tricks on the memory. That over the years allparticipants on the opposite side of this to Mr Ross, may well haveconvinced themselves that this was what the situation was but inreality it wasn't.[54] Mr Fairbrother put it neatly to you, in terms of his submissionwhen he said to you, we need more than fragile memory to convict adefendant in this case. [55] In the present case, we agree that a s 122 warning was necessary. Thecomplainants and other witnesses had given evidence about Mr Ross' conduct said tohave occurred some 36 years prior to trial. Issues of reliability and prejudice were acentral plank in the defence case. The issue is whether the warnings given wereadequate.[56] Mr Phelps contended that the warnings were inadequate and asserted that theywere not tailored to Mr Ross' case. First, he noted that the Judge did not refer to thefact that potential witnesses for the defence had passed away or to the fact that, ifMr Ross had been prosecuted in 1998 or thereabouts, it would have been easier forwitnesses to remember the events in question. Moreover, records, photographs andthe like would more likely have been available. Secondly, Mr Phelps argued that theJudge's failure to identify the specific prejudice occasioned by the delay wasexacerbated by the italicised part of the summing-up, set out above at [54]. The Judgetold the jury to "overlook matters of specific prejudice".[57] As to the first argument, we consider that the Judge's s 122 warning wasdeficient. He failed to identify the specific prejudices caused by the delays in thiscase. The matters noted by Mr Phelps should have been identified. While the Judgesummarised the defence case in regard to the frailties of memory of events long past,he did not specifically acknowledge the difficulties and prejudice caused for thedefence by the passage of time. In CT the majority held that a s 122 direction shouldextend to identifying prejudice to the defence's ability to challenge Crown evidence,caused by the passage of time.[58] However, it is not every deficiency in the trial process that will occasion amiscarriage of justice. The Judge's directions should not be seen in isolation. It wouldhave been obvious to the jury that the defence case was prejudiced by the delays,including the fact that witnesses were no longer available and records had been lost.The jury had heard evidence in this regard from Mr Ross. It had also heardMr Fairbrother's opening and his closing. Mr Fairbrother emphasised in both thatMr Ross had been disadvantaged in his attempts to gather evidence in support of hiscase by the passage of time. The Judge, in turn, appropriately emphasised the needfor caution and the effect time can have on memory on a number of occasions. Healso summarised the defence's case that their ability to challenge the evidence wasprejudiced. While he should have gone further to add his own caution that the juryshould take into account the specific claimed impact on the defence's ability tochallenge the evidence, in the context of a trial where so much of the focus was uponthis issue, we are satisfied the jury had it clearly in mind.[59] As to the second argument, the impact of the portion of the summing-up wehave italicised, this was a conventional direction. In the course of his closing addressMr Fairbrother also acknowledged that "you cannot reach a verdict on evidence thatisn't here". We do not consider the direction can be read as a direction to ignore thedifficulty for the defence in challenging the accuracy of events recounted 36 years on.To speculate on the evidence that others might have given if they had been availableor had been called would have been improper, and in context the Judge was saying nomore than that.[60] Accordingly, viewed in the context of the trial, the deficiency in Judge Rea'ss 122 direction did not create any risk of a miscarriage of justice; the jury would havewell understood the need for and reasons for caution when approaching the evidenceof Crown witnesses.[61] In case we are wrong in this conclusion, we record our view that this is anappropriate case to apply the proviso found in s 385(1) of the Crimes Act. The provisoenables this Court to dismiss Mr Ross' appeal against conviction if we are sure of hisguilt, even if a point raised has been determined in his favour. We note the following.[62] All of the complainants' accounts of the offending were unshaken oncross-examination. Mr Ross' defence was not that the complainants had made up theoffending. Rather, his defence was that they were mistaken that he was the offender,and in particular that they had stayed with him in the forest settlement. As to that werecord:(a) Both of the complainants and RE identified Mr Ross.(b) The complainants and RE had memories of living in the state forestsettlement with H and Mr Ross.(c) H recalled the complainants and RE staying with her and Mr Ross whenthey were children.(d) Both complainants and RE remembered, to a greater or lesser degree,attending a local school while staying at the state forest settlement.(e) The prosecution produced records showing that the complainants andRE were enrolled at the school near the state forest settlement by aMr Ross. The jury had before it evidence that enrolment did notnecessarily equate with attendance, and that was a matter for them toweigh.(f) The prosecution produced a photo of a house which each of thecomplainants and RE identified as being Mr Ross' house in the stateforest settlement. The complainants were in the photo.(g) In relation to the incident at South Auckland, R gave evidence ofMr Ross' visit.(h) B (R's mother) remembered Mr Ross coming to stay in the house. Shesaid that she had worked on night duty and that she had come home tofind Mr Ross in the house.(i) RE also remembered Mr Ross visiting the house.(j) M and R complained to the police in 1996–1997, when the events wererather more recent than they were when the matter proceeded to trial,for a second time, in 2016.[63] In our judgment it was a strong Crown case, notwithstanding the passage oftime. It is, as the Judge identified, speculative what other witnesses who may havebeen available but for the passage of time might have said, and it is noteworthy thatthose potential witnesses whom the private investigator was able to track down did notunequivocally support Mr Ross' denials that the children stayed with him. Indeed, asnoted above, the defence made the tactical decision not to call those persons aswitnesses.Propensity directions[64] The prosecutor at trial invited the jury to use the evidence of each of thecomplainants to support the allegations made by the other, putting it to the jury thatthere were similarities in the circumstances of the sexual offending alleged by eachand that the evidence of both showed a pattern of conduct by Mr Ross. The defenceon the other hand contended that there was no pattern of conduct, and that the twocomplainants had discussed the matter with each other and colluded in making theirrepresentative allegations.[65] Mr Phelps submitted that Judge Rea's directions as to propensity were deficientbecause they did not adequately put to the jury the defence contentions regarding thealleged pattern of behaviour.[66] The leading discussion on propensity evidence directions is the minorityjudgment of McGrath and William Young JJ in Mahomed v R.26 William Young J,writing for both, held that when giving a propensity evidence direction, the judgeshould:27(a) Identify the evidence in question and explain why it has been led and thelegitimate respects in which it might be taken into account by the jury.We see no need for the judge to define "propensity" . In cases in26 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.27 At [95].which a demonstrated propensity could legitimately be a stepping stonein the reasoning process of the jury, that should be identified usingconcrete language addressed not to "propensity" as an abstract concept,but rather specifically to the particular pattern of behaviour or thinkingwhich is in issue. In most cases, the legitimate reasoning available to thejury will be based around coincidence or probability. That should beexplained to the jury in simple and direct language addressed to theparticular facts and what is said to be the implausible coincidence or howthe evidence otherwise bears on the probability of the defendant beingguilty. This is likely to require a discussion of the similarities involvedin the conduct alleged. Where there are factors which may explain thepostulated coincidence (for example, suggested collusion between thewitnesses) that too should be addressed. We see no need for the judge tootherwise go through the s 43(3) criteria ... . These criteria are addressedto the admissibility decision the judge must make and not the factualassessment which is for the jury.(b) Put the competing contentions of the parties.(c) Caution the jury against reasoning processes which carry the risk ofunfair prejudice associated with the propensity evidence. This shouldusually be along the lines that the fact that the defendant has or may haveoffended on other occasions does not establish guilt and that the onlylegitimate reasoning process available to the jury is the one which hasbeen outlined.The minority emphasised there is no single template that will fit every trial.28 Eachdirection must be tailored to meet the needs of the case.[67] In the present case, Judge Rea gave the following directions as to thepropensity evidence:[38] Now in this case Mr Ross faces allegations from two separatecomplainants and each of them has given you an account of what they sayhappened to them. Now as I have said to you, each of these charges has to belooked at separately and you are required to give a separate verdict in relationto each of the charges. However in this case the Crown submits to you thatthere are similarities or patterns of conduct between the allegations made byeach of the complainants and as such you are entitled to take into account theevidence of what one of them says to support what the other says, and viceversa. To say to yourselves that they mutually support one another andtherefore we can take that into account in deciding whether in face theseallegations are true.[39] The Crown submits that because of this it makes it more likely thatthe defendant has committed any one of these offences that he is charged with.The Crown says to you that the evidence of each of the complainants showsthat the defendant has a tendency to act in a particular way and in this case,Mrs Reilly has said to you that the particular way is to sexually abuse young28 At [94].females who are in his temporary care in similar sorts of ways as you haveheard alleged by each of the witnesses.[40] If you agree that there are similarities and that they show a pattern ofconduct by Mr Ross, then you are entitled to use the evidence of onecomplainant to support the evidence of the other. You may take the evidencerelating to any charges fitting within the pattern, into account, in relation to allof the other charges that come within the pattern. If you find that thesesimilarities or this pattern of conduct are present, then you are entitled to giveit such weight as you consider is appropriate in the circumstances. If onexamining the evidence, you do not find the similarities or pattern of conductthat the Crown alleges, then there is no linkage between the charges and youmust then go about looking at each charge separately without using theevidence of any other charge or any other complainant to support that charge.It is the Crown's case here that based on the defendant's proven pattern ofconduct, he is either guilty of these charges or he is the victim of animplausible coincidence, namely that he has been falsely accused in such asimilar way by two different complainants. Putting it another way, the Crownsays to you that the defence case here rests on the unlikely coincidence that ofall the people a particular complainant chooses to make a false complaintabout, she has chosen a person who someone else alleges acted in the sameway towards her.[41] Now where the complainants are known to one another, as they arehere, or have had contact with one another, Judges always warn juries to becareful about the possibility that they got their heads together to make up afalse story against the defendant. Now that was not directly put in that way toeither of the complainants, that they had got together and cooked up stories sothat they could get Mr Ross into trouble but you have to look, not only at thelength of time ago it was but the context in which they were living, to seewhether you can rule out the possibility that that is what might have been whathas happened here. And that would go right across all of the family members.Is it another situation where somebody has tried to dovetail their ownexperiences to support a family member against Mr Ross in thesecircumstances. Remember that in the end you do need to look at each chargeseparately. Do not reason that just because you find he may have done badthings, he must be guilty of the charge you are considering.[68] In our judgment, the propensity direction given by Judge Rea was appropriate.The Judge explained in simple terms the concept that the evidence as to one set ofcharges could be used to support the evidence on the other charges, if it was found thatthere were similarities or a pattern between the representative sets of charges. He didnot attempt to define propensity in the abstract or to go through the factors in s 43 ofthe Evidence Act. Rather, he explained what the jury were to do if they found thatthere was no linkage or pattern — they were to look separately at each charge withoutusing the evidence on any other charge for support. He set out the Crown assertionsof similarity and then warned against the possibility of collusion between witnesses,which was the defence contention. Finally, the Judge warned against illegitimatereasoning processes involving propensity evidence.[69] We do not consider that the Judge was required to go further, or that anymiscarriage of justice arises from the Judge's propensity direction.Indictment dates[70] Finally, Mr Phelps contends that the Judge gave an unfair direction in respectof the various changes made to dates in the indictment.[71] Mr Phelps pointed out that the indictment had been amended on variousoccasions. The Crown case at the first trial was that the offending at the state forestsettlement occurred between 1 May 1980 and 30 September 1980. The offending inSouth Auckland was said to have occurred between 1 September 1980 and 30 June1981. At the conclusion of the evidence in the first trial, the indictment was amended.The offending in South Auckland was alleged to have occurred from 11 September1980 to 30 June 1981. Following the successful appeal against conviction, the Crownagain sought to amend the dates in the indictment. In a pre-trial ruling, Judge Reagranted an amendment which saw the date range of the five counts said to have beencommitted at the state forest settlement amended to between 1 July 1980 and 8 October1980, and the date range of the remaining counts alleging the offending inSouth Auckland, amended to between 8 October 1980 and 31 December 1980.29 Atthe conclusion of the Crown case, the prosecutor sought a further amendment inrespect of the South Auckland charges. Judge Rea initially reserved his position but,at the conclusion of the evidence, the indictment was amended in respect of the twoSouth Auckland counts to between 8 October 1980 and 31 March 1981.[72] The defence at trial contended that these changes reflected adversely onthe Crown case. Mr Fairbrother in closing referred to the various changes and theshifting nature of the allegations against Mr Ross as a whole, including the fact thatthe initial charge of rape was amended to a charge of attempted rape.29 R v Ross [2016] NZDC 1323.[73] In his summing-up, Judge Rea said as follows:[28] Now I just want to say something to you before I deal with that, aboutthese dates. Mr Fairbrother said something about those and you will take onboard what he had to say about the changes. I want to tell you this. That ifyou were sure that this activity occurred at the locations alleged, any of it. Itwould not matter what the dates were; it would not matter if they got the dateswrong. If you are sure it happened, the dates do not actually matter. It is nota defence, for example, to say yes well I did not do this on the 31 Decemberwhich covers the charge but I did do it on 2 January. That would not be adefence. So do not get hung up about that.[74] We do not consider this direction was inappropriate for the following reasons:(a) Ordinarily, a date specified in an indictment will not be an essentialelement, and it will be open to a jury to convict in relation to a differentdate whether or not an amendment to the indictment has been sought.Dates are only essential if, for example, issues of limitation arise orthere are changes in the law, which could result in a miscarriage ofjustice.30 No such circumstances applied in this case.(b) While it was open to the defence to rely on the changes of dates asevidencing uncertainties in the Crown case, we do not consider that thepoint can be taken further than that. The defence was that thecomplainants never lived with Mr Ross at the state forest settlement,and that Mr Ross was never alone with the complainant, R, at theaddress in South Auckland. The defence was that the offending couldnot have occurred at all, not that the offending could only have occurredon particular dates.(c) The latest changes to the dates in the indictment were made byconsent.31 Mr Fairbrother accepted that there was no prejudice toMr Ross in amending the dates.30 Simon France (ed) Adams on Criminal Law — Criminal Procedure Volume 1 (looseleaf ed,Thomson Reuters) at [CPA17.06]; and K (CA665/2014) v R [2015] NZCA 566.31 Ruling 4, above n 6.[75] In our judgment, the trial Judge's direction to the jury that the precise dates setout in the charges did not matter was orthodox and appropriate. The jury was notdirected to ignore Mr Fairbrother's closing regarding the date changes. Rather, theywere told to "take on board what he had to say". Judge Rea did not err by directingthe jury that, if they were sure the offending occurred at the locations alleged, the datesdid not matter.Result[76] We do not consider either of the grounds of appeal are made out. In ourjudgment there were no errors by trial counsel, nor any inadequacies in the trial Judge'ssumming-up, which could have resulted in a miscarriage of justice.[77] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent