KELLY JAMES EMERY v R [2021] NZCA 158

KELLY JAMES EMERY v R [2021] NZCA 158 [21 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA601/2019[2021] NZCA 158BETWEEN KELLY JAMES EMERYAppellantAND THE QUEENRespondentCA49/2020BETWEEN LANCE WAKA WILLIAMSAppellantAND THE QUEENRespondentHearing: 22 March 2021Court: Miller, Brewer and Dunningham JJCounsel: S L McColgan for Appellant CA601/2019D S Niven for Appellant CA49/2020E J Hoskin for RespondentJudgment: 21 May 2021 at 12.00 pmJUDGMENT OF THE COURTA The conviction appeals are dismissed.B The sentence appeals are allowed. The sentences are quashed and thesentences remitted to the High Court for re-sentencing in light of thisjudgment. The appellants are remanded in custody to appear in theHigh Court at Auckland on 9 June 2021 at 9.00 am.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Messrs Emery and Williams are two of five men who faced trial on chargesrelating to two aggravated robberies and conspiring to commit another during a spreethat began on 5 March 2018 and ended with their arrests 23 days later. The robberstargeted a MoneyShop and an ACM security van using stolen cars and a firearm,obtaining a total of approximately $109,779.10 in cash.[2] The principal trial issue on the completed offences was identity. On theconspiracy charge the appellants denied that what was being planned was a robbery,or that they were parties to it. The appellants were found guilty of the two charges ofaggravated robbery, and Mr Williams was also found guilty of one charge of unlawfuluse of a motor vehicle and one charge of conspiracy to commit an aggravated robbery.1Messrs Williams and Emery were sentenced to 12 and 11 years' imprisonmentrespectively, both with a minimum period of imprisonment (MPI) of 50 per cent.2[3] They appeal their convictions, alleging overreach by the Crown and errors bythe trial Judge, and their sentences, saying the starting points were too high, the Judgewrongly refused to adjourn sentencing for cultural reports, and it was wrong to imposeMPIs. The Crown contests all grounds of appeal except the issue relating to thecultural reports, inviting us to remit the appellants for resentencing or call for reportsand sentence the appellants ourselves.Narrative facts[4] The Crown case was that sometime before 5 March 2018, the appellantsentered a conspiracy with Kavae Teina (allegedly the ringleader), Benny Muraahi andAdrian Tepania to commit aggravated robberies using a firearm. They acquired adouble-barelled shotgun, blue overalls, balaclavas and latex gloves.1 Mr Emery also pled guilty to two charges of unlawful taking of a motor vehicle and one charge ofunlawful possession an explosive, being shotgun cartridges.2 R v Williams [2019] NZHC 2614.[5] The offending began on 5 March 2018 when a Subaru car was stolen. It is notin dispute that Mr Emery and Mr Tepania stole it. The car was driven to a MoneyShopin Takanini and reversed into a car park. Two men got out, wearing disguises, whilea third, the driver, remained in the car. One of the robbers carried what is said to bethe double-barrelled shotgun. They held up the staff and took all the cash on thepremises, $454.10, and the handbags of two of the staff members. The robbery wasrecorded on CCTV, which the men disabled before leaving the scene. They abandonedthe Subaru nearby. Police found Mr Williams's fingerprints on the back of the rearvision mirror and the driver's seatbelt buckle.[6] On 6 March another Subaru was stolen, again by Messrs Emery and Tepania.The following morning that car was filmed following a marked ACM cash transit vanin Takanini as the van serviced automatic teller machines in the area. It is not indispute that a white Honda Accord, registered to Mr Williams, was also observedfollowing the van. Earlier that morning Mr Emery was filmed driving the Honda intoa service station and refuelling it. He was wearing a white T-shirt. He was seen talkingthere to Mr Tepania, who was driving another car.[7] When the van stopped at a bank at the Southgate shopping centre, the Subarupulled alongside as the two ACM staff members were loading cash from the automaticteller machine. Two masked men got out of the car, one carrying what is said to bethe same double-barelled shotgun, and the driver remained inside. A total of $109,325was stolen. The offenders fled, allegedly followed by the Honda. The Honda'smovements after the robbery were not recorded on CCTV but it was recorded beingdriven into the car park at the shopping centre at the time of the robbery. The Crownmaintained that Mr Emery was the driver of the Honda, purporting to identify him bywhat a Police officer who viewed the footage considered was a white T-shirt.The Subaru was abandoned nearby, and the Crown alleged that the offenders fled inthe Honda.[8] The Police quickly identified the five defendants as likely suspects. They werewatched, their telecommunications data was analysed and their cellular devicestracked. The Crown alleged that the data evidenced the involvement of all the men.They used coded language such as "movie" meaning, the Crown alleged, anaggravated robbery, and "birthday present", meaning a firearm.[9] The Crown alleged that the intercepted communications disclosed that the menwere planning another aggravated robbery. On 27 and 28 March 2018 their addresseswere searched and evidence seized, including cash. The Crown alleged that theirrecent spending showed they had come into possession of large sums of cash.In Mr Williams's Honda they found a black beanie and a black balaclava. He was alsoin possession of several shotgun cartridges. Hidden in Mr Emery's wardrobe and chestof drawers they found a total of seven shotgun cartridges.The trial[10] The men were all charged with the two aggravated robberies and conspiracy tocommit a third. Messrs Teina, Muraahi and Williams were described at trial as the"A team" who actually committed the robberies. They were further charged withusing the two cars dishonestly and without claim of right during the robberies.Mr Williams was said to have been the driver. Messrs Emery and Tepania, the"B team", were charged with theft of the cars. Mr Emery was further charged withunlawful possession of an explosive, being the shotgun cartridges.[11] The trial began on 5 August 2019 in Auckland. On 14 August 2019, Peters Jdelivered a ruling which is important for reasons we explain later.3 She allowed theCrown to adduce hearsay statements as evidence against the defendants under s 22Aof the Evidence Act of the 2006, reasoning that there was sufficient evidence of a jointenterprise to commit aggravated robberies, that the enterprise encompassed bothaggravated robberies and the subsequent specific conspiracy, and that the defendantswere members of the conspiracy. She rejected a defence submission that there weretwo joint enterprises, the first culminating after the ACM security van. She alsorejected the submission that there was insufficient evidence that the criminal offendingbeing planned subsequently was aggravated robbery. Citing the judgment of this Courtin R v Messenger, she accepted the Crown argument that it would be artificial to sever3 This is recorded in a reasons judgment of 18 February 2020: R v Teina [2020] NZHC 202.the period.4 She was also satisfied that there was reasonable evidence that what wasunder discussion after 16 March 2018 was another robbery.5 This ruling is notchallenged on appeal.[12] Mr Williams accepted that he knew the other defendants and was incommunication with them throughout the period of the alleged conspiracy.He admitted that his fingerprints were in the first Subaru but maintained that wasconsistent with him getting into the car without realising it was later to be used for anoffence. It was his case that the balaclava in his car could not be the one seen in theCCTV footage and described by the MoneyShop staff; that there was no evidenceconnecting him with the Honda Accord on the day of the second robbery; that he ismuch older than the estimate of the driver's age given by an eyewitness at theMoneyShop; that around $10,000 in cash he and his partner had spent (buying a carfor her and new wheels for the Honda) did not come from the robberies and the Policehad returned the cars rather than forfeit them as proceeds of crime; and that the jurycould not be certain that what the men were planning before 28 March 2018 wasanother aggravated robbery.[13] Mr Emery accepted that he knew the other defendants and was incommunication with them throughout the period. He pleaded guilty during trial tostealing the two Subarus but maintained he had no idea what the others planned to usethe cars for. He pleaded guilty also to possession of the shotgun cartridges.He admitted that it was he who refuelled Mr Williams's Honda Accord before thesecond robbery, but he denied driving it at the Southgate shopping centre. He pointedout that $2,600 cash found in his possession and property purchased had not beenforfeited but rather had been returned by the Police. His case on the conspiracy chargewas that the Crown had not proved he was party to a conspiracy to commit anaggravated robbery and what they were discussing was some other criminal activity,likely drug dealing.[14] Crown counsel delivered a detailed closing address which marshalled thecircumstantial evidence against the defendants. The address took much of the day of4 R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779.5 R v Teina, above n 3, at [19].Friday 16 August 2019. Defence counsel delivered their closing addresses on 19 and20 August and the Judge summed up for a little over an hour on 21 August 2019.[15] The jury found three of the five defendants, including the appellants, guilty ofboth the aggravated robbery charges.6 The "A team" were convicted on the conspiracycharge but Mr Emery was not. Mr Williams was also found guilty of unlawfully usingthe first Subaru but acquitted of using the second.The conviction appeals[16] The appellants engaged new counsel for these appeals but there is no allegationof error against trial counsel. The appeals focus on the conduct of the prosecutor andthe Judge's rulings and summing-up.[17] Mr McColgan and Mr Niven helpfully provided joint submissions.The grounds concerned the prosecutor's description of the defendants as "knowncriminal associates", and multiple alleged failures by the Judge: to direct the jury oncross-admissibility of evidence as among the charges; to summarise the defence cases;to direct adequately on the inadmissibility of a statement by Mr Muraahi against otherdefendants; and to direct the jury on the Crown contention that there was noalternative explanation consistent with the defendants' innocence. Mr McColgan alsosubmitted that the jury heard inadmissible opinion evidence of a police officerpurporting to establish that the driver of the Honda at the Southgate shopping centrewas wearing a white T-shirt, and that the prosecutor wrongly asserted that Mr Emerywas seen driving the Honda during the second robbery.Known criminal associates[18] Prosecuting counsel, Ms Norrie and Mr Rhodes, twice referred to thedefendants as "known criminal associates", once at the end of Ms Norrie's openingaddress and once when Mr Rhodes began his closing. Ms Norrie said in opening: The fact is that while there are lots of pieces of evidence, lots of differentstrands to this case, at the end of the day this really is a straightforward case.6 The two remaining defendants were Mr Teina (the jury could not reach a verdict for either charge)and Mr Tepania (the jury found him not guilty for the first aggravated robbery but could not reacha verdict on the second charge).And the Crown case is that all five defendants are known criminal associates.As a group, the defendants formulated a plan to commit a number of robberies,specifically targeting premises where large amounts of cash were expected tobe present. And in closing Mr Rhodes said as follows: . As Ms Norrie told you at the start of this trial last Monday this is fromthe Crown's perspective a straightforward case. That doesn't mean it isn'tdetailed but the Crown says that the overall picture painted by the evidence isabundantly clear. Repeating what Ms Norrie said in opening to you the Crowncase is that all five defendants are known criminal associates. As a group theyformed a plan to commit a number of robberies, specifically targetingpremises where large amounts of cash were expected to be present. Planswere made to steal cars shortly before each robbery for the purpose of drivingto and from the targeted premise. Mr Tepania and Mr Emery were tasked withtaking those cars. Mr Tepania and Mr Emery of course now have pleaded toguilty to doing so.[19] Mr McColgan submitted that the natural meaning of these remarks is that thePolice knew the five defendants had offended together prior to the events that werethe subject of the trial. The defendants were members of a gang, the Killer Beez, andthere was propensity evidence that Mr Muraahi and Mr Teina had previouslycommitted aggravated robberies, but there was no evidential foundation for asubmission that the defendants were known criminal associates.[20] Ms Hoskin, for the Crown, readily accepted that in normal circumstances thesestatements would give cause for concern. But in this case the Crown alleged that thedefendants were all engaged in joint criminal offending. They were accused ofcommitting two robberies and planning a third. The jury heard interceptedcommunications in which criminal offending was clearly the subject of discussion.Indeed, the defendants did not really dispute that. Mr Emery accepted that criminalactivity was afoot but suggested it was not aggravated robbery. In her summing-upthe Judge told the jury that there was "no real argument from the defendants that thedefendants were discussing committing some form of offence but the issue is what?"[21] We agree. We further observe that the Judge did not remark upon thestatements by the prosecutor. No one asked her to. That strongly suggests that thestatements did not assume the significance at trial that they are now said to bear.7In context, we do not think the jury would have taken the prosecutor's statements torefer to offending on previous occasions. We observe that they were unable to reachverdicts on some of the charges against Mr Teina, one of the defendants in respect ofwhom propensity evidence was led.Cross-admissibility of evidence as between charges[22] Mr McColgan submitted that the Judge failed to warn the jury aboutcross-admissibility of evidence as between the charges, or to give the jury a propensitydirection. That led to a risk that the jury might reason that if the defendants committedone of the robberies they must also have committed the other. Far from addressingthis risk, the Judge repeated the Crown contention that when all the evidence was takentogether the jury could properly infer that each defendant was guilty of the robberies.Counsel cited the judgments of this Court in R v Ngawhika, Knight v Rand KM (CA249/2013) v R for the proposition that cross-admissibility and propensitydirections were required,8 and argued further that, the issue being identity, it wasnecessary that the propensity evidence show a distinctively similar fact pattern.9[23] We do not accept these submissions. As noted earlier, the Judge had ruledduring the trial that hearsay statements were admissible against all of the defendantsunder the co-conspirators rule, reasoning that there was a single joint criminalenterprise from beginning to end.10 The specific charges are merely instances of thisconspiracy in action. The evidence of a conspiracy was all admissible on all charges.Of course the Crown had to prove that each defendant was involved, whether asprincipal or party, in the specific offence the subject of each charge. The Crown caserested heavily on communications in furtherance of the conspiracy, as the trial issuewas identity and those communications tended to identify the defendants. Beyond thatthe Crown relied for the most part on circumstantial evidence linking the defendants'movements and actions to the robberies.7 See for example Arona v R [2018] NZCA 427 at [38] where inadmissible evidence was led at trial,but it did not assume the significance at trial the appellants later argued.8 R v Ngawhika [2016] NZCA 311, (2016) 28 CRNZ 100; Knight v R [2018] NZCA 350; andKM (CA248/2013) v R [2014] NZCA 120.9 R v Ngawhika, above n 8, at [34]–[35].10 R v Teina, above n 3, at [20].[24] In these circumstances the Judge need not direct the jury that the evidence oneach charge was not cross-admissible unless it qualified as propensity evidence.All that was necessary was that the Judge instruct the jury, as she did, that they mustgive separate consideration to each charge and must not assume the defendants wereguilty of one charge merely because the Crown had proved its case on another. Noneof the cases cited by counsel involved a joint criminal enterprise. Knight andKM (CA249/2013) do not stand for counsel's proposition at all and Ngawhika was apre-trial appeal addressing the question whether evidence of burglaries widelyseparated in time and circumstance was cross-admissible as propensity evidence.[25] In the circumstances, we do not accept that any question of cross-admissibilityarose in this case; and if it did, the evidence was so interconnected as to not require adirection.11 There was no risk of illegitimate reasoning by the jury.Failure to summarise defence casesParties' submissions[26] Counsel for the appellants argued that the Judge failed to summarise thedefence cases and submitted that she was required to do so in a multi-accused case ofsome complexity in which the closing addresses took several days and bridged aweekend.[27] In relation to Mr Williams, counsel submitted that the Judge did not addresshis defence to the first robbery at all. When addressing the second robbery the Judgesaid only that the mere fact of a fingerprint in the earlier vehicle did not meanMr Williams must be guilty. She made no mention of any of the defendants' defencesto the conspiracy charge, other than to note they had suggested it could have relatedto something other than an aggravated robbery.[28] In relation to Mr Emery, counsel submitted that the Judge contented herselfwith noting that Mr Emery said he did not know what the first car was to be used for11 R v S [1998] 3 NZLR 392 (CA) at 400; and Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [41].and denied being the second getaway driver. She also pointed to the poor-qualityphotographic evidence of the Honda at the shopping centre.[29] Counsel submitted that trial counsel for Messrs Williams and Emery hadadopted and added to the critique of "communal" aspects of the Crown case made byvarious defence counsel during closings. These included alternative explanations fortext messages, gaps in time between those messages and the offences, and in relationto the second robbery the absence of any connection between the defendants andanyone who worked at ACM. They submitted that none of this was mentioned by theJudge.[30] Counsel submitted that the adequacy of the Judge's summing-up was raisedwith her when the jury retired. The Judge called the jury back to address acommunication received from them and took the opportunity to add that she had notrepeated everything that counsel had said in their closing remarks and had observedthat the jury had been taking notes, which she invited them to review during theirdeliberations. In short, the Judge refused to elaborate on what she had told the jury.As we explain at [53] below, this narrative is incorrect; trial counsel actually askedthe Judge not to say more. Before us, however, appellate counsel maintained that theJudge was obliged to summarise the defences, trial counsels' preferencenotwithstanding.[31] Ms Hoskin submitted that the Judge's summaries of the defence cases, whilebrief, were adequate. They sufficed to identify the key themes of the defence cases.The Judge was evidently satisfied that the defence cases were fully understood by thejury. She was not required to do more in the circumstances. It was a relativelystraightforward case in which the evidence was uncomplicated and substantiallyagreed. It was largely contained in 12 pages of agreed facts, a booklet containing thetranscribed phone calls and messages, and a booklet containing photographs andCCTV stills. The respective arguments had been plainly and thoroughly stated bycounsel. Against this backdrop, the Judge's decision to summarise the cases broadly,reminding the jury of "some of the key points that you will want to consider" wasappropriate. Ms Hoskin emphasised that the mix of verdicts indicates the juryunderstood and responded to the defences. She submitted that the Judge's approachwithstands scrutiny in the particular circumstances of this trial. And if the Court thinksthe Judge ought to have done more, no possibility of a miscarriage arises.Legal principles[32] The leading authority on a judge's obligation to put the defence case is stillR v Shipton, in which this Court said:12[33] The underlying principle is that it is the absolute duty of a trial Judgeto identify and adequately remind the jury of the defence case in relation toeach defendant. It follows that a failure to refer in the summing up to a centralline of defence that has been placed before the jury will generally result in theconviction being set aside, and a new trial ordered.[35] There never has been, and is not now, any dispute as to the characterof this fundamental requirement of a summing up. The difficulty in the vastmajority of cases which advance on appeal under this head has lain rather inwhat is required in the fact-dependent circumstances of each case.[33] This Court went on to emphasise that a judge cannot, in general, rely oncounsels' closing speeches, for a trial judge speaks from a position of great authority.For that reason, judges should distinctly hesitate before concluding that they can safelyrely on what has been said by counsel.13 This Court cited observations of the EnglishCourt of Appeal in R v Amado-Taylor, in which it was said that the fact that membersof the jury were taking notes does not relieve a judge of this responsibility.14[34] That said, what is required of the judge always depends on the particularcircumstances of the case at hand, particularly when it comes to the extent to which itis necessary to go into detail. As this Court explained in Waters v R:15 there are limits on a judge's duty to put the defence case to the jury. Thejudge must be satisfied that the defence case is fully understood by the jury.The extent of the detail that the judge must traverse will depend on the case.In a complex case, the judge will generally need to go through the key factualallegations for both sides, to give them order and coherence for the jury, andmake it easier for them to carry out their assessment. In a simple case this isnot as important, because the issues will be obvious and the facts to be12 R v Shipton [2007] 2 NZLR 218 (CA). Because of suppression orders, the judgment was issued,and is often cited, as A (CA301/05) v R CA301/05, 11 April 2006. We cite the reported version.13 At [38].14 At [39], citing R v Amado-Taylor [2000] 2 Cr App Rep 189 (CA).15 Waters v R [2018] NZCA 84 (footnote omitted).determined will not require particular organisation to assist in deliberations,or particular elucidation to ensure a clear understanding of the respectivepositions. A judge is not required to repeat all defence counsel's arguments orassist the defence case by setting out inconsistencies or other matters alreadyreferred to by counsel.[9] But the Crown and defence case should be summarised at least as totheir broad form in a balanced and clear way by the judge. It is a judge's dutyto assist a jury in its difficult task, and such a summary will help them. [35] In Shipton this Court addressed the consequences of a breach of a judge's dutyto put the cases, holding that:16[56] In New Zealand, a finding that the trial Judge failed to adequately putthe defence case to the jury will normally result in a new trial (R v Maney,affirming R v Hopkirk (1994) 12 CRNZ 216).[57] The relationship to a miscarriage of justice was put in the followingterms by the English Court of Criminal Appeal in R v Badjan (1966) 50 CrApp R 141 at p 144:"Where a cardinal line of defence is placed before the jury and thatfinds no reflection at any stage in the summing-up, it is in generalimpossible, in the view of this court, to say that the proviso [that is,not interfering with the verdict unless there is a substantialmiscarriage of justice] can properly be applied so as to say that theconviction is secure in those circumstances."[36] Shipton and the cases cited there17 were decided under s 385 of the Crimes Act1961. This case is governed by s 232 of the Criminal Procedure Act 2011, whichprovides that:232 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpart inaccordance with this section.(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or16 R v Shipton, above n 12.17 Notably Maney v R CA116/99, 21 October 1999, which cited at [33] the judgment of this Court inCampbell v R [1954] NZLR 22 (CA). In Campbell this Court held that before allowing an appealon this ground it must consider the "substantial miscarriage of justice" proviso in the statutorypredecessor of s 232 of the Criminal Procedure Act, s 385 of the Crimes Act 1961: at 24–25.(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that amiscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for anyreason.(3) The first appeal court must dismiss a first appeal under this subpart inany other case.(4) In subsection (2), miscarriage of justice means any error, irregularity,or occurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.(5) In subsection (4), trial includes a proceeding in which the appellantpleaded guilty.[37] As the Supreme Court explained in Haunui v R, agreeing with what this Courthad said in Wiley v R, s 232 did not alter the task for an appellate court on a convictionappeal,18 but it did reframe the test. The Supreme Court explained what is nowrequired of an appellate court:19 The question under s 232(4)(a) is "whether the error, irregularity oroccurrence in or in relation to or affecting [the] trial has created a real risk theoutcome was affected". That question "requires consideration of whetherthere is a reasonable possibility another verdict would have been reached".If the answer to that question is "no", that is the end of the matter and theappeal will be dismissed. If the answer to that question is "yes", we considerthe effect of the Criminal Procedure Act is that the appeal court then askswhether it is sure of guilt. If the answer is "no", the appeal will be allowed.If the answer is "yes", the court determines the error did not in fact create areal risk that the outcome was affected and the appeal will be dismissed.Finally, as we have noted, if the appeal court is satisfied that the jury's verdictwas unreasonable (s 232(2)(a)) or that the error has resulted in an unfair trialor a trial that was a nullity (s 232(4)(b)), the appeal will be allowed and theproviso reasoning does not apply.(Footnotes omitted.)[38] A trial judge's failure to sum up the defence cases is not among the class offundamental errors that will normally cause an appellate court to condemn the trial as18 Haunui v R [2020] NZSC 153 at [50], citing Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.19 At [67].unfair without further inquiry.20 In Shipton, this Court recognised that a failure to putthe defence case is not invariably fatal — rather the language used was that it will"normally" result in a new trial.21 The Court usually inquires into the likely effect ofthe omission. When doing so, it considers whether the addresses of counsel adequatelyexplained the respective cases on the trial issues and whether the jury would still havehad the addresses clearly in mind when they began their deliberations.22[39] It follows that an appellate court faced with this ground of appeal must firstdecide whether the judge's duty to put the cases was breached. If it was, the breachwas an error for the purposes of s 232(4). The court must next consider whether theerror created a real risk that the outcome was affected; put another way, whether thereis a reasonable possibility another verdict would have been reached. If the answer tothat question is no, the appeal will be dismissed. If the answer is yes, the CriminalProcedure Act envisages that the court may go on to consider whether it is satisfiedbeyond reasonable doubt of the appellant's guilt.[40] If satisfied that the duty was breached and there exists a reasonable possibilitythat the jury would have reached another verdict, it may be that the appellate court willfind itself unsure of the appellant's guilt. This is such a case. If satisfied that the Judgeerred and the jury might have reached a different result, we would think it necessaryto direct a retrial.The Judge did not breach her duty to put the cases[41] The first question is whether the Judge breached her duty to put the defencecases. We are satisfied that she did not. Before explaining why, we summarise whatshe had to say about the defences.20 There is a class of fundamental errors comprising counsel's failure to follow instructions aboutplea, the election to give evidence, and whether to advance a defence based on the defendant'sversion of events: Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65]. In R v Young [2009]NZCA 453 a trial was deemed unfair for a number of reasons including the Judge's failure to putthe defence case.21 R v Shipton, above n 12, at [56].22 See for example R v Young, above n 20 (the case was based around circumstantial evidence andthis framework needed to be, and was not, explained to the jury: at [58]–[59); Gurran v R [2015]NZCA 347 (defence counsel heavily relied on an argument regarding a bloodstain in closing,meaning it would have been prominent in the jury's mind when considering the evidence: at [58]);and Waters v R, above n 15 (closings and summing-up were all on one day, so they would havebeen fresh in the jury's mind: at [11]).[42] The Judge dealt with the cases on a charge-by-charge basis rather than partyby party.(a) First aggravated robbery (charge 3)[43] The Judge summarised economically and clearly the Crown case about the roleplayed by each defendant, distinguishing between principals and parties.[44] She did not specifically mention Mr Williams's defence (or that of othermembers of the "A" team). He had attempted to exploit a gap in time between thetheft of the first car and its recovery to explain the presence of his fingerprints. He alsocontrasted the presence of his fingerprint with the Crown's insistence that theoffenders were forensically aware and had worn gloves, suggesting that shows thatwhen he sat in the driver's seat he did not know the car was to be used in the robbery.He had further relied on the age discrepancy in the eyewitness description of thegetaway driver, and he had also alleged that the balaclava found in his car did notmatch those described by witnesses.[45] The Judge did address Mr Emery's defence, reminding the jury that he andMr Tepania admitted stealing the Subaru but denied knowing what it was to be usedfor. While the Judge mentioned Mr Emery's comments in a police interview that hehad a limited role, she did not emphasis his argument that he was telling the truth (ascompared to the Crown who alleged he was lying in this interview). The Crown hadalso alleged that he was the backup driver, collecting the robbers when they dumpedthe Subaru; she reminded the jury that this rested on an inference based on theCrown's claim about the role he played in the second robbery.(b) Unlawful use of the first Subaru (charge 2)[46] The Judge did not mention Mr Williams's defence to this charge, which wasthe same as his defence for the robbery.(c) Second aggravated robbery (charge 6)[47] With respect to Mr Williams, the Judge reminded the jury that counsel had saidthe fingerprint on the first car did not make him guilty of the second robbery. She didnot remind the jury that Mr Williams's position on the use of the Honda was that onlyMr Emery had been seen doing anything with it, or that Mr Williams had contendedthat his communications around the robbery more likely related to drugs.[48] With respect to Mr Emery, the Judge reminded the jury that counsel had saidthe Crown case was drawing a very long bow, for the evidence showed only that earlyin the morning Mr Emery had been seen refuelling the Honda. The photographs fromthe second robbery did not show that he was driving or that the driver was wearing awhite T-shirt.(d) Unlawful use of the second Subaru (charge 5)[49] The Judge did not mention Mr Williams's defence, which was the same as hisdefence to the aggravated robbery. However, this is the offence of which he wasacquitted.(e) Conspiracy to commit aggravated robbery (charge 7)[50] The Judge explained that there was no real dispute that the defendants werediscussing the commission of some form of offence. The question was what offence.She reminded the jury that they had to be sure the codes used related to aggravatedrobbery and sure that what was being discussed was an aggravated robbery.[51] Mr Emery was acquitted of this charge. His counsel had drawn the jury'sattention to communications which he said evidenced friendship rather than anyagreement to do anything. Mr Williams contends that the Judge did not adequatelyput his defence that the communications did not show he was party to a conspiracy.However, this argument rested on the proposition, which the Judge did put, that thecodes may have referred to something else. It is true that the Judge did not mentionspecific examples of communications which counsel focused on, but she did not haveto descend to that level of detail.(f) Summary of Mr Emery's defence adequate[52] We are satisfied that the summary of Mr Emery's defence was adequate.Subject to what we have to say next, that for Mr Williams would not have beenadequate, for the reasons given when discussing charges 2 and 3, above.(g) Counsel asked the Judge not to say more[53] The trial record confirms that after the summing up concluded some counsel,notably counsel for Mr Teina, took issue with the absence of a summary of theirclient's cases. However, counsel for Mr Williams was not among them. Counsel notedthat Mr Williams maintained there was an innocent explanation for the fingerprints,but his preference was that the Judge "not say anything". An adjournment was taken,during which counsel for the defendants plainly reached a consensus. When theyreturned to chambers the Judge made it clear that she was prepared to say more aboutthe defence cases, but counsel withdrew their request that she do so. All counsel,including those for Messrs Williams and Emery, expressly confirmed their preferencethat she not say anything. Following this discussion the Judge spoke to the jury, asnoted at [30] above, and reminded them that they must consider what counsel had saidand make use of their notes.[54] In the circumstances the argument that the Judge refused to summarise thedefence cases is untenable. So too is the argument that she was in breach of duty byfailing to do so. The critical point here is that this has not been run as a counsel errorappeal. In the absence of evidence from trial counsel we must assume that they hadgood reason to approach the case in the way they did and were confident that the juryadequately understood the cases. We add that the Judge evidently thought the defencecases had been well put by counsel and she formed the impression that the juryattended closely to what had been said.There is no reason to think the jury overlooked the defence cases[55] The case was circumstantial but reasonably straightforward. The existence ofa joint criminal enterprise was not in dispute. The question was whether eachdefendant was involved in each specific offence in the specific ways alleged by theCrown. The verdicts tend to confirm that the jury understood the defence cases andpaid close attention to the evidence, as the table below shows:Charge 3:firstrobberyCharge 2:firstunlawfuluseCharge 6:secondrobberyCharge 5:secondunlawfuluseCharge 7:conspiracyTeina No verdict No verdict No verdict No verdict GuiltyMuraahi Guilty(majorityverdict)Guilty(majorityverdict)Guilty(majorityverdict)Guilty(majorityverdict)GuiltyWilliams Guilty Guilty(majorityverdict)Guilty No verdict GuiltyEmery Guilty N/A Guilty N/A Not guiltyTepania Not guilty(majorityverdict)N/A No verdict N/A N/A[56] Mr Emery must have been found to have been part of the overall criminalenterprise, but he was acquitted of the specific charge of conspiring to commit anotheraggravated robbery. Mr Williams's acquittal on the charge of unlawful use of thesecond Subaru indicates that the jury were not sure he acted as driver but were surethat he was party to the offence.[57] This ground of appeal fails for both appellants.Inadequate direction on inadmissibility of Mr Muraahi's statement against theappellants[58] The appellants accept that many of the text messages and phone conversationsled as part of the Crown case were admissible against all defendants as having beenmade in furtherance of a joint enterprise. Some, however, were not. This ground ofappeal focused on a communication by Mr Muraahi to an unknown number in whichhe referred to a "solo movie" that he, the appellants and another defendant had made.That statement was admissible against Mr Muraahi alone.[59] Counsel accept that the Judge sought to explain this to the jury in conventionalterms. She identified two specific passages in the transcript and said:[53] On each of those pages, page 3 of both of those conversations,Mr Muraahi says something to the effect that he, Mr Teina, Mr Williams andMr Emery have "pulled off a solo movie" or "thinged a little movie". If youlook at page 3 of tab 4, at the bottom right hand of page 3 "But, yeah, um,went and thinged, ah, like, solo movie" "just me, Karvs, Boldes and Kels".And if you go to tab 20, page 3, again towards the bottom of the page "yeahjust thinged a little movie" and then "just me, Karvs, Boldes and Kels".[54] What a "a little movie" might be or what a "movie" is, is something Iwill come back to a bit later but I am instructing you now that Mr Muraahi'sstatements in those two specific passages are evidence for or againstMr Muraahi but no one else. You are not to put any weight on the referencesto Mr Teina, Mr Williams or Mr Emery in those specific passages.[60] The Judge went on to suggest that the jury put a line through the references toMr Teina, Mr Williams and Mr Emery, referred to in the messages by knownnicknames, and said:[56] Is everyone following me? You're not following me, ok. Go to tab 4,page 3 I want you to put a line, a couple of lines from the bottom you seeMr Muraahi says "Yeah. Oh, um, just me, Karvs, Boldes and Kels" "Justpulled off a solo". Put a line through "Karvs, Boldes and Kels". And do thesame thing on page 3 at tab 20 and that way there is no risk of any problems,so take out "Karvs, Boldes and Kels".[61] Mr McColgan suggested that it is evident the jury were confused by thisdirection. He submitted that the jury were left unsure as to whether that statement wasadmissible against the other defendants.[62] We do not accept this submission. In our view the Judge gave a clear directionand the passage to which counsel referred us simply confirms that the Judge wasmaking sure the jury were left in no doubt as to the limited use that could be made ofthis evidence.Failure to direct the jury on the Crown's "no reasonable explanation" contention[63] Mr McColgan observed that the prosecutor suggested in closing that the juryshould consider whether there were any reasonable alternative explanations for theevidence. Mr Rhodes made sure initially to note that the defendants were under noobligation to explain themselves, as that would entail a reversal of the burden of proof,but he went on to refer repeatedly to the absence of other reasonable explanations.Counsel submitted that this approach risked reversing the onus of proof.[64] We do not accept these references risked reversing the onus of proof. Afterusing the phrase, the prosecutor made it clear that there could be no reversing of theonus. Defence counsel made the same point. They did not invite the Judge to correctwhat the prosecutor had said, suggesting that in context they did not think he had gonetoo far. The Judge both opened the trial by mentioning the onus and summed up onthe topic, giving an orthodox direction that the onus lay on the Crown throughout andrepeating that the Crown had to prove each element of each charge beyond reasonabledoubt as she went through the question trail.CCTV footage: Mr Emery[65] As noted, part of the Crown case against Mr Emery for the second robbery wasthat he had been seen driving Mr Williams's car both when he refuelled it at a servicestation and at the shopping centre. This evidence depended on CCTV images.[66] The images from the service station were uncontroversial. They showedMr Emery wearing a white T-shirt. The footage from the shopping centre was viewedby Detective Petersen, who tried to capture the content in photographs he took on hisown phone as he sought to establish whether the Honda had been at the shoppingcentre. Through some miscommunication another officer did not retrieve the CCTVfootage from the shopping centre, so the Crown found itself having to rely onDetective Petersen's copied images at trial. The quality of the images was mediocre.The officer was permitted to give opinion evidence, based on extensive review of thefootage, that he believed the driver was male and wearing a white T-shirt.[67] Mr Niven submitted that in the result, the jury neither saw the footage nor heardfrom an expert who had viewed it. Detective Petersen had no expertise in the area.His evidence accordingly had little probative value but carried a considerable risk ofunfair prejudice. The Judge ought to have excluded the evidence, and if it wasadmitted, she ought to have issued a reliability warning.[68] We note that no objection was taken to the evidence at trial, nor did trial counselrequest such a warning. As Ms Hoskin noted, it was initially agreed that theDetective's evidence should be read and the CCTV stills were produced as part of theagreed facts. The defence stance was that the images showed the driver was wearinga long-sleeved garment of light colour.[69] We consider the Detective's evidence was admissible as expert evidencefounded on the time he had spent reviewing and analysing the images he had taken.His opinion evidence extended no further than saying he believed the man shown waswearing a white T-shirt. He did not venture an opinion as to identity. In thecircumstances we are not persuaded that the evidence was unfairly prejudicial. On theother hand, it was probative. One of the images clearly suggests to us that the driverwas wearing a white top, possibly a T-shirt, meaning that Mr Emery could not beexcluded as the driver. The Detective was robustly challenged about his evidence andthe jury had before them the still images to form their own opinion.Crown claim in opening about the evidence against Mr Emery[70] Mr Niven also contended that the prosecutor misstated the evidence in openingthe Crown case, stating that Mr Emery was seen driving the Honda in convoy with thestolen Subaru as the two cars began to follow the ACM van and again as the cars leftthe scene of the second robbery. We do not accept that this was a misstatement of theevidence. As Ms Hoskin submitted, it was merely the Crown articulating its case inits opening address. We accept that the evidence ultimately did not show thatMr Emery was seen driving the Honda in convoy with the stolen Subaru or away fromthe scene of the robbery, but the Crown prosecutor did not suggest otherwise in hisclosing address.[71] It follows that the conviction appeals must fail.Letter of remorse from Mr Williams[72] Ms Hoskin invited us to rely on a letter of remorse written by Mr Williamsbefore sentencing when considering the conviction appeal. In the letter he took "fullresponsibility for [his] actions" and apologised to the victims of the offending.Mr McColgan urged us to place little weight on this letter, arguing that had the trialnot miscarried there is every chance it would not have been written and adding that itis in any event ambiguous.[73] We accept that a court may place weight on an admission made in suchcircumstances,23 but we do not regard the statement in this case as a clear admissionof guilt.The sentence appeals[74] It was common ground before us that the appellants must be re-sentenced.They sought to, but ultimately did not, offer cultural reports under s 27 of theSentencing Act 2002. Under that section an offender may request a sentencing courtto hear a person called by the offender to speak on their background and its relevanceto sentence.24 The Court must hear that person unless satisfied that some specialreason makes it unnecessary or inappropriate.25[75] Counsel told us that they understand the Judge was not prepared tocountenance a delay in sentencing and took the view that reports would make nodifference as the appellants did not plead guilty. Counsel did not appear at trial,however, and the record does not support that contention. Rather, Peters J told counselby minute of 19 September 2019 that she was not prepared to delay sentencing untilmid-November. That would have been three months after trial. At a callover theprevious day the Crown had elected not to pursue a retrial for Mr Williams on the onecharge that had not resulted in a verdict, but that ought to have had no bearing onpreparation for his sentencing, which had been scheduled for 10 October 2019.26 Noreason has been given for delay in Mr Emery's case.[76] The Judge was entitled to be concerned. Section 27 recognises that it can beappropriate to delay sentencing where necessary to obtain information, but it has notbeen suggested that the delay was necessary for that reason in this case. The public23 See R v Vaitulia [2007] NZCA 525 at [21]–[24].24 Sentencing Act 2002, s 27(1).25 Sentencing Act, s 27(2).26 The Crown did suggest delaying sentencing for Messs Teina and Tepania pending their retrial.has an interest, as do victims, in bringing proceedings to an end. Nor did she refuseto receive reports. Rather, she indicated that she was prepared to grant a shortadjournment "for a week or so". She did express doubt that the sentences could beaffected by the matters typically addressed in a cultural report, but she did not expressa final view. Rather, she asked counsel to advise whether a short adjournment wouldassist them. Counsel elected not to offer information under s 27. We observe that suchinformation need not take the form of a written report. Section 27 envisages that adefendant will call a person with knowledge of their background and rehabilitativeprospects to speak to those matters at the sentencing hearing.[77] We are nonetheless prepared to allow the appellants an opportunity to remedytheir omission by supplying reports, for two reasons. It may be, though there is noevidence of it, that there is an explanation for their inaction. And while accountability,denunciation and deterrence must be leading sentencing considerations for repeatedoffending of this dangerous kind the possibility that a report will affect the sentencescannot be excluded.[78] The appellants asked this Court to re-sentence them rather than remand themto appear in the High Court. The Crown took a neutral stance.[79] This Court has sometimes adjusted a sentence in reliance on a s 27 reportprepared after sentencing where that is the practical course. In this case, we thinksentencing should be done by the trial Judge who heard the evidence and is best placedto gauge culpability. There will be a contest; the Crown strongly resists the appeal onthe merits. The exercise will traverse all sentencing considerations because theappellants contend that the totality-adjusted starting points were too high27 and theywill also rely on cultural reports to increase personal mitigation and eliminate theMPIs. We observe that counsel criticised Peters J for giving only brief reasons for theMPIs, but we expect that happened because trial counsel agreed 50 per cent waswarranted. An appeal lies as of right against the resulting sentence, which is an27 Mr Williams received a starting point of 12 years' imprisonment and Mr Emery received a startingpoint of 11 years' imprisonment. Both appellants argued these starting points were too high whencompared to cases that received comparable starting points but featured more serious offending:Lavea v R [2014] NZCA 192 (starting point of 10 years); and R v Collett CA83/04,30 August 2004 (starting point of 11 years).important consideration in a case where the sentence is at large. If the sentencing weredone here, they could appeal only by leave of the Supreme Court.Decision[80] The conviction appeals are dismissed.[81] The sentence appeals are allowed. We quash the sentences and remit thesentences to the High Court to re-sentence in light of this judgment. We remand theappellants in custody to appear in the High Court at Auckland on 9 June 2021 at9.00 am. That is a nominal date, fixed so the High Court can schedule the sentencinghearing.Solicitors:Crown Law Office, Wellington for Respondent