LEONARD GUS NATTRASS-BERGQUIST v R [2017] NZCA 552

LEONARD GUS NATTRASS-BERGQUIST v R [2017] NZCA 552 [4 December 2017]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF THENAME AND IDENTIFYING PARTICULARS OF THE WITNESSREFERRED TO AS MR SMITH AND HIS EVIDENCE REMAINS INFORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA276/2016[2017] NZCA 552BETWEEN LEONARD GUS NATTRASS-BERGQUISTAppellantAND THE QUEENRespondentCA407/2016BETWEEN BEAUEN DANIEL GEORGEWALLACE-LORETZAppellantAND THE QUEENRespondentHearing: 1 August 2017Court: Cooper, Brewer and Peters JJCounsel: M S Gibson for Mr Nattrass-BerguistJ S Kovacevich and V J Feyen for Mr Wallace-LoretzK S Grau for RespondentJudgment: 4 December 2017 at 11.30 amJUDGMENT OF THE COURTA The application for an extension of time in which to file the notice ofappeal is granted in CA407/2016.B The appeals against conviction are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)Table of ContentsPara NoIntroduction [1]Background [6]Crown case [6]Defence case [11]First ground of appeal — lies direction [16]Submissions [16]Discussion [28]Second ground of appeal — exclusion of evidence ofMr Gillman-Harris's prior conviction [35]Submissions [43]Discussion [46]Third ground of appeal — validity of charging documents and othermatters arising from the Crown's reliance at trial on the forms ofmurderous intent specified in ss 167(a) and (b) and 168(1)(a) ofthe Crimes Act [49]Charging document [52]Charge notice and charge list [61]Trial [63](a) Submissions [77](b) Discussion [81]Fourth ground of appeal — the issues sheet [88]Submissions [88]Discussion [90]Result [106]Introduction[1] Following a trial before Toogood J and a jury in April 2016, the appellants,Mr Nattrass-Bergquist and Mr Wallace-Loretz, were each convicted of the murder ofIhaia Gillman-Harris, aggravated robbery and unlawfully taking a motor vehicle.[2] The Judge sentenced both appellants to life imprisonment on the murder chargeand imposed minimum periods of imprisonment of 10 years, nine months in the caseof Mr Nattrass-Bergquist and 11 years in the case of Mr Wallace-Loretz.1 The Judgeimposed concurrent sentences on the other charges.[3] The appellants now appeal against conviction. They allege that a miscarriageof justice has occurred for several reasons. The following grounds are common toboth appeals:(a) the Judge materially misdirected and/or failed to direct adequately onthe issue of lies;(b) the appellants were denied their rights to know the charges againstthem, and, wrongly, the Crown was permitted to add new charges attrial. By these matters, provisions of the Criminal Procedure Act 2011(CPA) were not complied with and their rights under s 24 New ZealandBill of Rights Act 1990 (NZBORA) were breached; and(c) there were deficiencies in the sheet the Judge prepared to assist thejury's deliberations.[4] Mr Nattrass-Bergquist additionally submits that a miscarriage of justiceoccurred because the Judge erred in declining to allow defence counsel to adduceevidence of Mr Gillman-Harris's conviction in 1996 for unlawful sexual connectionwith a male over 16.[5] Mr Wallace-Loretz filed his notice of appeal nearly two months out of time.In light of him providing an explanation for the delay, and in the absence of oppositionfrom the Crown, we grant his application for an extension of time in which to file hisnotice of appeal.1 R v Nattrass-Bergquist [2016] NZHC 1089.BackgroundCrown case[6] The Crown case was that Mr Gillman-Harris died as a result of head injuriesthat either or both of the appellants inflicted between 8.15 am and 8.35 am on27 December 2014.[7] The Crown alleged that at some time after 2 am on 27 December 2014,Mr Gillman-Harris, aged 54, collected the appellants, then aged 17, and their friend inhis car from Pakuranga Mall. Mr Gillman-Harris had a sexual interest in theappellants. Mr Gillman-Harris proceeded to drive the appellants and their friendaround Auckland for several hours, during which the appellants developed a plan torob Mr Gillman-Harris and to inflict injury if it proved necessary to do so. The planwas formed and evidenced by a series of text messages the appellants sent, largely toone another, between 5 am and 6.40 am. The appellants' friend got out of the car atabout that time.[8] To execute the plan, the appellants contrived to retrieve a bat thatMr Wallace-Loretz had left at the Mall before Mr Gillman-Harris picked them up.They also led Mr Gillman-Harris to believe that one or both would participate in asexual encounter with him for a sum of money. Shortly after 8 am, Mr Gillman-Harriswithdrew $400 from an ATM and rented a motel room, both in anticipation of thisencounter.[9] In accordance with their plan, one or both of the appellants assaultedMr Gillman-Harris, probably with the bat, shortly after entering the motel room.Mr Gillman-Harris sustained four, possibly five, blows to the head, which ultimatelycaused his death, as well as blows to the body. Also as planned, the appellants stolethe cash along with Mr Gillman-Harris's credit card and cell phone, all of which werein the motel room. The location of the stolen items was relevant because the Crownalleged that the appellants not only had the form of murderous intent specified in eithers 167(a) or (b) of the Crimes Act 1961 but also the form of intent specified ins 168(1)(a), that is, they caused death while meaning to cause grievous bodily harmfor the purpose of committing robbery or facilitating flight or avoiding detection uponcommission of the same.[10] The appellants then drove away in Mr Gillman-Harris's car. Althoughemergency services were alerted, Mr Gillman-Harris died later that day, havingsuffered a cardiac arrest. The appellants presented themselves to the police afterlearning of his death.Defence case[11] The appellants admitted that there had been an altercation in the motel room.However, they disputed that they had caused Mr Gillman-Harris's death and, if thatwere proved, they disputed that the assault was "unlawful". They claimed that theassault had been carried out in self-defence, within the meaning of s 48 of theCrimes Act, which provides:48 Self-defence and defence of anotherEvery one is justified in using, in the defence of himself or herself oranother, such force as, in the circumstances as he or she believes themto be, it is reasonable to use.[12] Mr Wallace-Loretz did not give evidence at trial, but in his evidence at trialMr Nattrass-Bergquist said that he believed the three were going to the motel room tosleep. He was shocked when, once inside the room, Mr Gillman-Harris started to playa pornographic movie on his laptop. For reasons he explained, Mr Nattrass-Bergquistfound this offensive and he stopped the movie. Analysis of the computer wasconsistent with this evidence.[13] Mr Gillman-Harris, a much larger man than either appellant, then commenceda sexual assault on Mr Nattrass-Bergquist by pinning him to the bed and touching hisgenitals.[14] Mr Nattrass-Bergquist said that Mr Wallace-Loretz came into the room, sawthe pair struggling on the bed, and tried to remove Mr Gillman-Harris fromMr Nattrass-Bergquist. A tussle between the three ensued. Mr Gillman-Harris againpinned Mr Nattrass-Bergquist down until Mr Wallace-Loretz hit Mr Gillman-Harristwice on the head with a bottle of spirits that Mr Gillman-Harris had brought into themotel room. As a result of the blows to the head, Mr Gillman-Harris fell. Heapologised to the appellants and told them to leave. Terrified of Mr Gillman-Harris,the appellants drove away in his car. Mr Nattrass-Bergquist claimed they later foundthe cash in a bag under the driver's seat of Mr Gillman-Harris's car.[15] The appellants thus contended that Mr Wallace-Loretz struckMr Gillman-Harris in defence of Mr Nattrass-Bergquist and that the force used wasreasonable in the circumstances as Mr Wallace-Loretz believed them to be.Mr Nattrass-Bergquist said the appellants did not plan to rob, injure or killMr Gillman-Harris. In support of this, he referred to evidence that Mr Gillman-Harrishad tried, unsuccessfully, to obtain a room at another motel before he withdrew thecash. The text messages on which the Crown relied were said to be statements ofyouthful bravado and not to be taken seriously. References in the texts to a "bat" werein fact references to a bottle. No bat had been retrieved from the Mall, let alone takeninto the motel room. Rather, Mr Wallace-Loretz had hit Mr Gillman-Harris with thebottle of spirits as described above.First ground of appeal — lies directionSubmissions[16] Mr Gibson submitted for Mr Nattrass-Bergquist that the Judge was required towarn the jury of the matters referred to in s 124(3)(b) and (c) of the Evidence Act 2006because there was the potential for the jury to interpret aspects ofMr Nattrass-Bergquist's evidence as a lie and, from there and without more, toconclude that he was guilty. Mr Gibson submitted that the Judge did not warn the juryof all the requisite matters and that a miscarriage of justice arose as a result.[17] In his written submissions on appeal, Mr Gibson submitted that the jury maynot have accepted Mr Nattrass-Bergquist's evidence of the circumstances in which hebelieved himself to be in the motel or may not have accepted that Mr Gillman-Harrisapologised to the appellants.2 In separate written submissions and in his oral2 Although Mr Gibson also referred to evidence from Mr Nattrass-Bergquist that Mr Gillman-Harristold the appellants to take his car, Mr Nattrass-Bergquist did no more than say it was possible thatMr Gillman-Harris had done so.submissions, Mr Gibson also submitted that it was open to the jury to acceptMr Nattrass-Bergquist's general narrative of self-defence even if they accepted thesubmission to them in closing from the Crown prosecutor, Mr Johnstone, thatMr Nattrass-Bergquist had lied on collateral matters, such as references to a bat in thetext messages being references to a bottle, the number of blows struck toMr Gillman-Harris's head, whether the blows were struck with a bat or bottle, andwhether the appellants took the stolen items from the motel room or the car.[18] Mr Gibson submitted that, because of these matters, it was essential thatthe Judge directed the jury correctly on the issue of lies, but the Judge did not do so.[19] The relevant part of the Judge's summing-up is as follows:[199] Now, in responding to that circumstantial evidence and in drawinginferences and conclusions from what happened in the motel, you will wantto give central importance to [Mr Nattrass-Bergquist's] evidence. And theproposition that is put to you, which is right, is that you have to be sure he'slying to you. You have to be sure that he was not telling the truth before youcan convict either of these young men of murder. Because when a witnessgives evidence and you're trying to determine their truth and credibility,you may or may not accept what they say . You may take some parts of awitness's evidence as true and you might reject others, that's a proper thing.[200] But when a defendant gives evidence it's a different propositionbecause if you accept what [Mr Nattrass-Bergquist's] said — if you think it'strue — then that really puts self-defence right at the forefront doesn't it? Itmeans that there was no plan. It means that Mr Gillman-Harris over-reactedand it means that [Mr Wallace-Loretz] came to his aid. It doesn't answer thequestion about reasonable force but it certainly answers all the questions aboutthe fundamentals of the Crown's case as to how this was a planned andexecuted event. So if you accept what he says, if you believe what he saidthen that takes you a very long way down the track to acquittal, certainly ofhim — certainly of him.[201] Another possibility, of course, is that you're not sure whether youbelieve him. He might be telling the truth. He doesn't have to prove it but hemight be telling the truth — it's reasonably possible. If that's your view then,again, the Crown has not discharged the burden of proving beyond reasonabledoubt its allegations that this is just all made up. It's only if you come to theconclusion that [Mr Nattrass-Bergquist] has lied to you in his evidence thatyou can say the Crown's case is looking a lot stronger. Because if a defendantlies to you in the course of giving their evidence — on the central issue — andyou reject that, then you're entitled to conclude that there is real strength inthe Crown's case; if there is other evidence which supports it. And the Crownsays, "Of course, there's other evidence, you've got the texts and all of that,what happened". So you need to approach it in that way because you willhave to come to views. And I stress that if you're left in any doubt aboutwhether his account is true then that is against the Crown because the Crownwill not have satisfied you beyond reasonable doubt that this was just a madeup story.(Emphasis added.)[20] Mr Gibson submitted that, read as a whole, these passages represented a"significant departure" from the direction required by s 124(3) of the Evidence Act.Mr Gibson emphasised particularly the statement by the Judge in [201] that the Crowncase was "looking a lot stronger" if the jury concluded that Mr Nattrass-Bergquist hadlied in giving evidence and the Judge's failure to warn the jury that they should notnecessarily conclude that Mr Nattrass-Bergquist was guilty just because theyconsidered he had lied to them.[21] The relevant parts of s 124 of the Evidence Act are as follows:124 Judicial warnings about lies(1) This section applies if evidence offered in a criminal proceedingsuggests that a defendant has lied either before or during theproceeding.(2) If evidence of a defendant's lie is offered in a criminal proceedingtried with a jury, the Judge is not obliged to give a specific directionas to what inference the jury may draw from that evidence.(3) Despite subsection (2), if, in a criminal proceeding tried with a jury,the Judge is of the opinion that the jury may place undue weight onevidence of a defendant's lie, or if the defendant so requests, the Judgemust warn the jury that—(a) the jury must be satisfied before using the evidence that thedefendant did lie; and(b) people lie for various reasons; and(c) the jury should not necessarily conclude that, just because thedefendant lied, the defendant is guilty of the offence for whichthe defendant is being tried.[22] Section 124(3) requires a Judge to warn the jury of the matters listed if adefendant so requests or if the Judge considers the jury may place undue weight onevidence of a defendant's lie. Although Mr Gibson did not at the trial request theJudge to warn the jury, he submitted to us that the Judge was required to do so, givenhis statement to the jury that the Crown case was looking a lot stronger if the juryconcluded that Mr Nattrass-Bergquist had lied. Mr Gibson submitted that such awarning would have struck a balance between the jury treating a lie as circumstantialevidence of guilt and the "human tendency" to conclude that a defendant is guiltybecause he or she has lied.[23] Mr Gibson also submitted that the Judge's remarks were deficient because hedid not identify the possible lie or lies to which he was referring and therefore thedirection was not tied to the facts of the case.[24] In support of these submissions, Mr Gibson referred us to decisions ofthis Court in McLaughlin v R and R v Khairati.3 In McLaughlin, the prosecutor hademphasised to the jury that Mr McLaughlin admitted lying to the police as to hiswhereabouts on the relevant day. This Court said that the failure to warn the jury interms of s 124(3)(c) had the potential to give rise to a miscarriage of justice.In Khairati, this Court was critical of the Judge's direction on lies because the Judgedid not identify the particular lies in issue or connect the lies relied upon to the factsof the case.[25] In response to these submissions, counsel for the Crown, Ms Grau, submittedthat a lies direction is not required if a defendant is said to have lied in giving anexculpatory explanation in evidence at trial. Ms Grau submitted that is what occurredin the present case when, in his closing remarks, Mr Johnstone submitted to the juryon several occasions that they should reject Mr Nattrass-Bergquist's evidence to them.Given this, the position was different from a case in which, at trial, the Crown relieson evidence of an "out of court" lie, for instance if a defendant tells the police a lie atthe outset and then changes his or her evidence at trial, such as in McLaughlin. In thelatter case, a direction on the matters in s 124(3) may well be required. There was no"out of court" statement in this trial, by either appellant.[26] Ms Grau also submitted that the Judge's direction made it clear that the juryneeded to be satisfied Mr Nattrass-Bergquist's account was untrue before they placedany weight on it; any doubt on that score was to be resolved in Mr Nattrass-Bergquist'sfavour; and, even if the jury were satisfied that Mr Nattrass-Bergquist had lied, they3 McLaughlin v R [2015] NZCA 339; and R v Khairati [2017] NZCA 31.could not rely on that alone to determine that he was guilty of murder. These are allmatters that a Judge would address if giving a standard lies direction under s 124(3).[27] Further, Ms Grau submitted that the Judge's direction did not give rise to amiscarriage of justice, that is, it was not an error that created a real risk that theoutcome of the trial was affected. She also submitted that a "conventional" liesdirection risked undermining the defence case as it would suggest thatMr Nattrass-Bergquist had lied in his evidence to the jury.Discussion[28] For the following reasons, we do not accept Mr Gibson's submission that thedirections the Judge gave in [199]–[201] of his summing-up were inadequate.[29] First, as Ms Grau submitted, a Judge is not usually required to direct a jury asto the matters in s 124(3) if the Crown contends that a defendant has lied in giving anexculpatory explanation in evidence at trial. This appears from R v O (CA342/06), andalso R v Guo, in which this Court confirmed that such a direction is not required inthose circumstances.4 The statement by this Court in Guo that a direction might havebeen given in relation to a "collateral" lie attributed to the appellant is not relevanthere and does not detract from the general principle to which we have referred.5[30] Secondly, we do not consider the Judge made any errors in his summing-up.In [199]–[201] the Judge was referring to Mr Nattrass-Bergquist's evidence as to whathad occurred in the motel room, which was the evidence relied upon to raise the issueof self-defence. That is the "central issue" to which the Judge was referring in [201].The Judge commenced [199] by informing the jury that they would wish to give"central importance" to Mr Nattrass-Bergquist's evidence about what had occurred.In [200] he went on to say that if the jury accepted Mr Nattrass-Bergquist's evidence,self-defence would be at the "forefront" and it takes Mr Nattrass-Bergquist "a verylong way down the track to acquittal". The Judge went on to say in [201] that if thejury thinks it is reasonably possible that Mr Nattrass-Bergquist is telling the truth then4 R v O (CA342/06) [2007] NZCA 87; and R v Guo [2009] NZCA 612.5 Guo, above n 4, at [68].the Crown has not discharged its burden of proving its allegations that the claim ofself-defence was fictitious. These directions were correct because what occurred inthe motel room was critical.[31] In saying that the Crown case became a lot stronger if the jury consideredMr Nattrass-Bergquist had lied to them on the "central issue", in large part the Judgewas stating the obvious. That is because there was no evidence other thanMr Nattrass-Bergquist's to support a narrative of self-defence.[32] To the extent the Judge was also referring to the possibility the jury might drawan inference unfavourable to the appellants from a conclusion thatMr Nattrass-Bergquist had lied to them on this issue, we accept Ms Grau's submissionthat the Judge then warned the jury of the matter in terms of s 124(3)(c). That is,the Judge warned the jury that they should not necessarily conclude guilt on the basisof finding that Mr Nattrass-Bergquist had lied on this issue, because the Judge wenton to say in [201] that there would need to be other evidence to support the Crowncase, hence the Judge's reference to the text messages and to "all of ... what happened".We accept that the Judge did not say to the jury that "people lie for various reasons",as required by s 124(3)(b). That part of the direction is particularly apposite if theCrown is seeking to rely on an "out of court" lie. Nothing turns on its omission in thiscase.[33] Thirdly, although we accept Mr Gibson's submission that it is conceivable thejury might have disbelieved parts of Mr Nattrass-Bergquist's evidence as identifiedin [17] but still accepted, or been in doubt as to whether, Mr Wallace-Loretz was actingin self-defence, we do not consider the Judge erred in omitting to draw this possibilityto the jury's attention. Both defence counsel urged the jury to acceptMr Nattrass-Bergquist's evidence in their closing remarks. As Ms Grau submitted, inthe absence of a request by defence counsel, a suggestion by the Judge thatMr Nattrass-Bergquist may have lied in any respect would have risked underminingthe defence case.[34] For these reasons, we do not accept Mr Gibson's submissions on this groundof appeal.Second ground of appeal — exclusion of evidence of Mr Gillman-Harris's priorconviction[35] Following Mr Nattrass-Bergquist's evidence, Mr Gibson adduced evidencefrom a witness to whom we refer as Mr Smith. Mr Smith had only made himselfknown to Mr Gibson after the trial had begun, following television coverage of thetrial several days earlier.[36] Mr Smith's evidence was that he had become acquainted withMr Gillman-Harris in 2002, when Mr Smith was 16 years of age. Mr Gillman-Harriswould have been in his early forties. Mr Smith's evidence was that he woke one nightat Mr Gillman-Harris's apartment to find that Mr Gillman-Harris was touching his leg.When Mr Smith asked what he was doing, Mr Gillman-Harris offered to pay him $400if he could perform oral sex on Mr Smith. Mr Smith refused and reported the matterto the police, who declined to take any action.[37] Mr Smith's evidence, on which he was not cross-examined, was thus consistentwith Mr Nattrass-Bergquist's evidence of Mr Gillman-Harris making an unsolicitedsexual advance.[38] Following Mr Smith's evidence, Mr Gibson sought to adduce evidence ofMr Gillman-Harris's prior conviction.[39] The summary of facts in respect of the prior conviction, which was providedto the Judge, stated that the complainant, aged 22 and only recently acquainted withMr Gillman-Harris, woke to find Mr Gillman-Harris, aged 34 at the time, sucking hispenis. The complainant told him not to, Mr Gillman-Harris desisted, the complainantreported the matter to the police, and the conviction for unlawful sexual connectionwith a male over 16 followed.[40] At trial, Mr Gibson submitted that the prior conviction established thatMr Gillman-Harris had a propensity "towards molesting young boys" and so wasconsistent with Mr Nattrass-Bergquist's evidence of an uninvited sexual approach.Counsel also submitted that the evidence of the conviction responded to Crownevidence that Mr Gillman-Harris was a gentle and non-confrontational person.Although the summary of facts relating to the prior conviction did not suggest thatMr Gillman-Harris had become violent in the manner alleged byMr Nattrass-Bergquist, Mr Gibson submitted that violence and aggression wereinherent in any unlawful sexual connection.[41] The Crown opposed the introduction of the prior conviction on the ground thatits probative value would be outweighed by its unfairly prejudicial effect, so that theJudge was required to exclude the evidence under s 8(1)(a) of the Evidence Act.Evidence of the conviction would do no more than confirm Mr Gillman-Harris'ssexual interest in young men, a matter that was not in dispute. As the summary offacts did not suggest that Mr Gillman-Harris had become violent when his advanceswere rejected, in contrast to Mr Nattrass-Bergquist's evidence about what happenedon this occasion, the evidence was of minimal, if any, probative value.[42] Following these submissions, the Judge ruled that evidence of the priorconviction was inadmissible as it was not relevant to a fact in issue, that is whetherMr Gillman-Harris had become physically violent to Mr Nattrass-Bergquist when hissexual advance was refused.Submissions[43] On appeal, Mr Gibson submitted that the Judge erred in his ruling becauseevidence of the prior conviction would have assisted the jury in assessingMr Nattrass-Bergquist's evidence that the appellants were acting in self-defence.Mr Gibson submitted that the conviction, combined with Mr Smith's evidence, madeit more likely that Mr Nattrass-Bergquist's account was true. Counsel also submittedthat the test for relevance under s 7 of the Evidence Act is not exacting and there wasno unfair prejudicial effect on the proceeding, as s 8 of the Evidence Act requires ifrelevant evidence is to be excluded.6[44] Ms Grau submitted that the Judge was correct to exclude evidence of the priorconviction. She submitted that it could be relevant only if it increased the likelihoodthat Mr Gillman-Harris had responded violently to a refusal of his sexual advance.6 Citing Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [8].Ms Grau submitted that, in fact, both the prior conviction evidence and Mr-Smith'sevidence supported the Crown case that Mr Gillman-Harris was not a violent personbecause he accepted both refusals without dispute. Ms Grau also submitted that theprior conviction would have been unfairly prejudicial to the Crown because it wouldhave invited prejudice without probative value.[45] If she were wrong in that, Ms Grau submitted that the exclusion of the evidencecould not be said to have created a real risk of a miscarriage of justice. That is becausethe jury had heard unchallenged evidence from Mr Smith of very similar conduct andhad still rejected Mr Nattrass-Bergquist's evidence of self-defence.Discussion[46] We accept Ms Grau's submission that the Judge did not err in excludingevidence of the prior conviction. Mr Smith's evidence was of a touching byMr Gillman-Harris as he slept, coupled with an offer to pay $400 in return for oral sex.There was no suggestion that Mr Gillman-Harris persisted in the face of Mr Smith'srefusal, or became angry or violent as a consequence of it. The same is true in respectof the further incident with a different young man that resulted in Mr Gillman-Harris'sconviction. Mr Gillman-Harris desisted when told to do so, and there was no angry orviolent response.[47] Both of these incidents were very different to what was alleged in the presenttrial. The evidence of the previous conviction would not have advanced the defencecase that Mr Gillman-Harris had responded violently when his sexual advance wasrefused. Indeed, it suggested that Mr Gillman-Harris would accept rejection of aproffered sexual advance without adverse reaction.[48] For these reasons, we do not accept Mr Gibson's submission that a miscarriageof justice arose because the Judge excluded evidence of the prior conviction.Third ground of appeal — validity of charging documents and other mattersarising from the Crown's reliance at trial on the forms of murderous intentspecified in ss 167(a) and (b) and 168(1)(a) of the Crimes Act[49] Ms Feyen, who appeared with Mr Kovacevich for Mr Wallace-Loretz onappeal, submitted to us that the trial was a nullity because the charging document,charge notice and charge list (the charging documents) did not comply with provisionsof the CPA and/or the Criminal Procedure Rules 2012. Alternatively, she submittedthat a miscarriage of justice arose because the manner in which the Crown proceededat trial had the effect of adding new charges against Mr Wallace-Loretz, breachings 24(a) of the NZBORA as Mr Wallace-Loretz was denied his right to know the chargeagainst him.[50] The factual background to these submissions is that at trial, commencing withMr Johnstone's opening remarks to the jury, the Crown relied on the forms ofmurderous intent specified in s 167(a) and (b) of the Crimes Act as well as on thatspecified in s 168(1)(a). The Crown did so despite the fact that none of the chargingdocuments had previously specified the s 167 forms of intent, but only s 168(1)(a).It is this omission which gives rise to Ms Feyen's submission that the chargingdocuments were a nullity.[51] The relevant parts of ss 167 and 168 provide:167 Murder definedCulpable homicide is murder in each of the following cases:(a) if the offender means to cause the death of the person killed:(b) if the offender means to cause to the person killed any bodilyinjury that is known to the offender to be likely to cause death,and is reckless whether death ensues or not:168 Further definition of murder(1) Culpable homicide is also murder in each of the following cases,whether the offender means or does not mean death to ensue, or knowsor does not know that death is likely to ensue:(a) if he or she means to cause grievous bodily injury for thepurpose of facilitating the commission of [robbery7], orfacilitating the flight or avoiding the detection of the offenderupon the commission or attempted commission thereof anddeath ensues from such injury:Charging document[52] A criminal proceeding is commenced by filing a charging document in theDistrict Court.8 Amongst other things, the document must contain "sufficientparticulars to fully and fairly inform the defendant of the substance of the offence"alleged to have been committed,9 and those particulars must include a reference to"a provision of an enactment creating the offence" alleged to have been committed.10[53] In this case, the charging document in respect of the murder charge against theappellants referred to s 172 of the Crimes Act, which provides:172 Punishment of murder(1) Every one who commits murder is liable to imprisonment for life.(2) Subsection (1) is subject to section 102 of the Sentencing Act 2002.[54] Ms Feyen submitted to us that s 172 does not create the offence of murder andthat accordingly the charging document did not meet the requirements of s 17(4) and(5) of the CPA. It was therefore a nullity.[55] In response, Ms Grau submitted that the reference to s 172 of the Crimes Actin the charging document was correct, as s 172 is the only provision in the Crimes Actthat relates to the "complete offence" of murder. In support of this submission,Ms Grau drew our attention to sch 1 to the CPA, which refers to s 172 for the purposeof identifying the offence of murder.[56] There is no provision in the Crimes Act that provides in express language thatit is an offence to commit murder. Section 160 defines culpable and non-culpable7 See Crimes Act 1961, s 168(2)(k) (footnote added).8 Criminal Procedure Act, s 14(1).9 Section 17(4).10 Section 17(5)(a).homicide, and ss 167 and 168 define murder. Section 172 provides that every one whocommits murder is liable to imprisonment for life.[57] It is correct that s 172 specifies a maximum penalty, but it is also the onlyprovision that uses the phrase "commits murder". In our opinion, s 172 is the provisionthat comes closest to creating the offence of "committing murder". The otherprovisions to which we have referred define murder; s 172 deals with carrying it out.Put another way, if ss 167 and 168 were removed from the Crimes Act, murder wouldstill be an offence but the common law would have to provide the definitions. If s 172were removed, then murder would not be an offence.[58] We add that the Crimes Act creates other offences in a similar way. Forinstance, s 128 defines sexual violation. Section 128B(1) provides:128B Sexual violation(1) Every one who commits sexual violation is liable to imprisonment fora term not exceeding 20 years.[59] Likewise, even though no provision expressly states that it is an offence towound with intent to cause grievous bodily harm, the fact that to do so is an offenceis apparent from s 188(1), which provides:188 Wounding with intent(1) Every one is liable to imprisonment for a term not exceeding 14 yearswho, with intent to cause grievous bodily harm to any one, wounds,maims, disfigures, or causes grievous bodily harm to any person.[60] Thus, the legislature has created other offences in the Crimes Act in the sameway it has created the offence of murder — by specifying a maximum penalty for aparticular combination of actus reus and mens rea. There is therefore nothing inMs Feyen's point on this issue.Charge notice and charge list[61] The Crown later assumed responsibility for the prosecution. That required theCrown to file a notice specifying particular information, including "details of eachcharge" to which the notice related.11 The notice in respect of the murder chargereferred to ss 168(1)(a) and 172 of the Crimes Act. The charge list provided to thejury at the commencement of the trial also referred to these two provisions.[62] Ms Feyen made the same "nullity" submission based on s 17(4) and (5) ofthe CPA in respect of these documents, which we reject for the same reasons.Trial[63] We turn now to Ms Feyen's remaining submissions as to the consequences ofthe Crown's reliance at trial on the s 167 forms of intent.[64] The Crown's intention to rely on the s 167 forms of intent was clear fromMr Johnstone's opening to the jury on 4 April 2016, when he said:Now, murderous intent can be shown in a variety of different ways. There are,I suggest to [you], potentially three ways that might be relevant to this case.The first way, plain enough of course, is if somebody intends — flat out — tokill the other person — obvious enough. There's another type of intention which qualifies as a murderous intention andthat is — or it would be in this case — if the person you're thinking about,Mr Nattrass-Bergquist, Mr Wallace-Loretz, meant to cause Mr Gillman-Harris a bodily injury that he knew was likely to cause death and was recklessabout whether or not Mr Gillman-Harris would die. And now the third type has to do with the plan to rob. I won't get involvedin, sort of, the old-fashioned legal terms about what this really comes from;but the basics of it is, if there is a contemplation or a plan involved to commita particular type of offence — and here robbery qualifies — if for that purposethere is an intention to cause really serious bodily injury so as to help with therobbery, that qualifies; or indeed so as to help with getting away from oravoiding detection for a robbery. [65] Defence counsel, now counsel on appeal, made no objection to this part of theopening, nor indeed to the following statement in Mr Johnstone's closing remarks on18 April 2016: what is clear is that these blows killed him and they were delivered withone at least of the three necessary murderous intents. An intention actually tocause Mr Gillman-Harris's death, or with an intention to cause bodily injury11 Criminal Procedure Act, s 189; and Criminal Procedure Rules 2012, r 4.11(2)(b).in circumstances where the assailant knew they were likely to cause death andwere reckless about whether or not Mr Gillman-Harris would die. Or thirdlyand perhaps most likely with an intention to cause really serious bodily injuryfor the purpose of facilitating the robbery or facilitating escape from or theavoidance of detection for the robbery that they planned [66] As it turned out, counsel did not object until 19 April 2016, after they had madetheir own closing remarks and were discussing with the Judge that part of the issuessheet that concerned murderous intent. In the course of that discussion, counselobjected to the Judge including directions and questions that addressed the s 167 formsof intent. Counsel submitted that the Judge should direct the jury to disregardMr Johnstone's remarks as to those forms of intent and sum up only on the form ofmurderous intent specified in s 168(1)(a). Mr Johnstone opposed these submissionsgiven the basis on which the Crown had run its case.[67] In support of his submissions to the Judge, Mr Kovacevich referred tothe Crown's failure to refer to the s 167 forms of intent in any of the chargingdocuments, contending this was in breach of the CPA and that the Crown was boundto proceed on s 168(1)(a) only. The Judge rejected this submission for many of thesame reasons we have.[68] Mr Kovacevich also submitted that, if the Crown were to rely on the s 167forms of intent, there would be a breach of ss 24(a) and 25(e) of the NZBORA. Theserelevantly provide:24 Rights of persons chargedEveryone who is charged with an offence—(a) shall be informed promptly and in detail of the nature andcause of the charge; and25 Minimum standards of criminal procedureEveryone who is charged with an offence has, in relation to thedetermination of the charge, the following minimum rights:(e) the right to be present at the trial and to present a defence:[69] The Judge did not accept this argument. His view was that the appellants wereand always had been charged with murder, and that the Crown case as to murderousintent was clear from its opening.[70] Mr Kovacevich then submitted that the effect of the Crown opening had beento "ambush" defence counsel. The Judge rejected this submission on the basis thatdefence counsel would have objected immediately if genuinely surprised by theCrown opening.[71] The Judge pressed both defence counsel repeatedly to say how they would haveconducted their case differently if they had appreciated from the outset that the Crownintended to rely on the s 167 forms of intent, as well as s 168(1)(a).[72] In response, Mr Kovacevich said he would have "changed" his case, that hisclient's instructions may well have changed and he would have changed his"entire closing", particularly to address the issue of recklessness in the context ofs 167(b). Aside from this, however, Mr Kovacevich did not state any particular respectin which he submitted Mr Wallace-Loretz had been prejudiced.[73] The Judge did not consider it likely that the defence case would have beenconducted differently, given the reliance on self-defence. The Judge also consideredthat any closing remarks by Mr Kovacevich on recklessness would have beeninconsistent with that defence.[74] The Judge asked Mr Kovacevich to identify a witness he would havecross-examined, cross-examined differently or called to give evidence had he fullyappreciated the Crown's position from the outset. Mr Kovacevich did not do so.[75] Mr Gibson submitted to the Judge that Mr Nattrass-Bergquist would not haveput all his "eggs in the basket of self-defence" had he appreciated at the outset that theCrown was relying on all three forms of intent. Mr Gibson also submitted that hewould have closed to the jury on the basis that the nature of the force used in the assaultby the appellants was relevant not only to self-defence but to whether there wasmurderous intent. Ultimately, Mr Gibson advised the Judge that he would be content"with a firm direction about the perils of recklessness" and a direction that s 167(b)would be proved only if the jury were satisfied the offender knew that the intended"bodily injury" would be "likely" to cause death. No issue is taken on appeal withwhat the Judge said to the jury on either matter.[76] Following this discussion with counsel, the Judge declined to confinethe Crown case as had been proposed. Although the Judge failed to give his reasonsin writing as he said he would do, his reasons are clear from the transcript of thediscussion with which we have been provided. They were that counsel were requiredto object to the Crown opening at the outset if genuinely surprised or embarrassed bythe Crown's intention to rely on all three forms of murderous intent, and counsel'sfailure to identify how they would have conducted their case differently had theyknown prior to, or appreciated at an early stage of the trial, that the Crown intended torely on the different forms of murderous intent.(a) Submissions[77] On appeal, Ms Feyen submitted that, by relying on the s 167 forms of intent,the Crown, wrongly, introduced additional charges at trial, breached s 24(a) of theNZBORA and caused Mr Wallace-Loretz "significant prejudice" in several respects.These were that Mr Wallace-Loretz was not aware of the essential elements of all ofthe charges against him; was not afforded the opportunity to meet or answer theelements of the s 167 forms of intent; was denied a fair trial by documentary andprocedural errors; and that "defence strategy, tactics and conduct would have beencarried out differently" had defence counsel known from the outset what the Crownintended.[78] Ms Feyen also submitted that this Court could not exclude the risk that theguilty verdict on the murder charge was founded on one of the s 167 forms of intent.[79] Ms Grau's submissions in response were as follows. First, throughout, theappellants faced a single charge of murder, regardless of whether one or more formsof murderous intent were alleged. Secondly, the Crown's reliance on the s 167 formsof intent could not have affected the manner in which defence counsel conducted theircase, or caused them any prejudice or disadvantage, and there is no real risk that theoutcome of the trial was affected. The appellants would have been acquitted had thejury accepted Mr Nattrass-Bergquist's evidence of self-defence or if that evidence hadraised a reasonable doubt in their minds.[80] Ms Grau also submitted that, whatever conclusion defence counsel may havedrawn from the reference to s 168(1)(a) in the charge notice and list, counsel could nothave been in any doubt as to the Crown case following Mr Johnstone's opening to thejury.(b) Discussion[81] We do not accept Ms Feyen's submission that the effect of the Crown's relianceon the s 167 forms of intent was to add new charges or breach the appellants' rightsunder s 24(a) of the NZBORA. As Ms Grau submitted, each appellant faced onecharge of murder. The Crown's reliance on alternative forms of murderous intent didnot alter the nature of the charge or increase the number of charges.[82] As to the respects in which Ms Feyen submitted Mr Wallace-Loretz wasprejudiced, we do not accept that Mr Wallace-Loretz was unaware of the essentialelements of all of the charges against him or that he did not have an opportunity or theability to answer the elements of the s 167 forms of intent.[83] The essential elements of the murder charge were causing death with therequisite mens rea. The fact the Crown intended to rely on the s 167(a) and (b) intentsas well as s 168(1)(a) was made clear at the outset of the trial.[84] Nor, for reasons we have given, do we accept that Mr Wallace-Loretz wasdenied a fair trial due to procedural and documentary errors, which we understand tobe a reference to Ms Feyen's submission regarding the charging documents.[85] Nor has counsel identified how the defence case for Mr Wallace-Loretz wouldhave changed or been conducted differently had counsel appreciated the ramificationsof the Crown opening at the outset. Like the Judge, we are not persuaded that defencecounsel would have proceeded differently in any material respect.[86] As Ms Feyen submitted, it is conceivable that the jury determined that theappellants were guilty of murder because they had one of the s 167 forms of intent.However, we also accept Ms Grau's submission that in this case the Crown's bestprospect of a guilty verdict on the murder charge was under s 168(1)(a). Whereass 167(a) requires an intention to kill and s 167(b) requires knowledge that death is alikely consequence of the bodily injury inflicted, s 168(1)(a) requires the Crown toprove an intention to cause grievous bodily injury for a purpose specified in theprovision. The requirements of s 168 are less onerous for the Crown, subject of courseto proving the specified purpose.[87] For these reasons, we do not consider the appellants were prejudiced by themanner in which the Crown proceeded at trial or that there was a risk of a miscarriageof justice as a result.Fourth ground of appeal — the issues sheetSubmissions[88] The appellants raise three principal objections to the part of the issues sheetaddressing the murder charge against them. The first concerns the use of the word"murder" in subheadings in the document. The second concerns the adequacy orotherwise of the treatment of self-defence. The third is a contention that the issuessheet led the jury to an "inevitable verdict of guilty" such that there was a miscarriageof justice.[89] Ms Grau submitted that there was no merit in the appellants' objections to theissues sheet. She submitted that it was necessary to use the word "murder" in headingsto distinguish between that charge and manslaughter, which the jury were required toconsider in the absence of a guilty verdict on murder; that self-defence was adequatelyaddressed; and that the issues sheet did not inevitably lead to a verdict of guilty butrather required the jury to answer the particular questions posed of them.Discussion[90] The Judge provided the jury with three documents. The first was a summaryof directions. The second and third were issues sheets in respect of each appellant.[91] The summary comprised directions on, amongst other things, liability as aparty, self-defence, the elements of the various offences and murderous intent.[92] The issues sheets comprised, on a charge-by-charge basis, a series of questionsthat the jury needed to address to reach their verdicts.[93] Insofar as concerns the murder charge, each issues sheet included three"scenarios". Murder scenario one addressed the "common intention" form of partyliability contained in s 66(2) of the Crimes Act on the basis that the jury were sure oneor both of the appellants had inflicted the fatal injuries but, if one, that the jury mightnot be able to say which one. Murder scenario two addressed the particular appellant'sliability as a principal party under s 66(1)(a) on the basis that the jury were able todetermine it was that appellant who had inflicted the fatal injuries. Murder scenariothree addressed the particular appellant's liability as a secondary party underss 66(1)(b)–(d), on the basis the jury were sure the other appellant was the principalparty.[94] We do not consider there was any prejudice to the appellants by the use of theword "murder" in the headings for the scenarios. Mr Kovacevich made this objectionto the Judge before the final form of the issues sheet was finalised. As Ms Grausubmitted, the Judge's response was that the use of the word was appropriate giventhat the appellants were charged with that offence. We agree.[95] As to the objection raised about the treatment of self-defence, the relevant partof the summary of directions said:Self-defence — making an assault not an unlawful actSection 48 of the Crimes Act 1961 says:Everyone is justified in using, in the defence of himself or another, suchforce as, in the circumstances as he believes them to be, it is reasonableto use.For either defendant to be found guilty of murder or manslaughter, the Crownmust prove, first, that Mr Gillman-Harris's head injuries were caused by anassault or assaults by either or both of the defendants and, second, that suchinjuries were an operating and substantial cause of Mr Gillman-Harris's death.If you are sure that such injuries (that is, those that were inflicted by theassault) were an operating and substantial cause of Mr Gillman-Harris'sdeath, it is for the Crown to prove beyond reasonable doubt that anydefendant who assaulted him did not act in justifiable defence of himselfor the other defendant.That means that you must decide first what the defendant believed thecircumstances to be, from his point of view. The second question is whetheryou are sure, bearing in mind the defendant's belief about the circumstances,the defendant was not acting in defence of himself or the other defendant atthe time of the assault. If it is reasonably possible that the defendant wasacting in defence of himself or the other defendant, you must decide whether,given the defendant's belief, the Crown has proved the force used was greaterthan was reasonable in those circumstances.If you are sure that a defendant assaulted Mr Gillman-Harris, but not inself-defence, or in self-defence but with excessive force, that will mean thatthe assault was unlawful. You will then need to consider whether the Crownhas proved all of the elements of murder.[96] From this it would have been clear to the jury that the first issue for theirconsideration was whether the Crown had proved that the assault by one or both of theappellants had caused Mr Gillman-Harris's death and, if so, that self-defence wouldbe the second issue for consideration. In turn, this would require the jury to determinethe three questions that the Judge set out in the summary, in the order listed.[97] Consistently with these directions, the first question in each murder scenarioin the issues sheet went to causation. The second question in scenario one and thesecond and third questions in scenarios two and three went to whether the Crown haddisproved self-defence.[98] The relevant question in scenario one was:12Question 2Are you sure that in assaulting Mr Gillman-Harris NEITHERMr Nattrass-Bergquist NOR Mr Wallace-Loretz assaulted him for thepurpose of defending himself or the other defendant against a sexualattack initiated by Mr Gillman-Harris?12 This is taken from the jury issues sheet for Mr Nattrass-Bergquist. A similar question was providedin the jury issues sheet for Mr Wallace-Loretz.[99] The relevant questions in scenarios two and three were:13MURDER SCENARIO TWO Question 5Are you sure that in assaulting Mr Gillman-HarrisMr Nattrass-Bergquist did not assault him for the purpose of defendinghimself or Mr Wallace-Loretz?If your answer to Question 5 is "Yes", you must go on to answer Question 7.Do not answer Question 6.If your answer to Question 5 is "No", you must go on to answer Question 6.Question 6[Do not answer Question 6 if you answered "Yes" to Question 5]Before you answer Question 6, you must decide what were the circumstancesas Mr Nattrass-Bergquist actually believed them to be at the time he assaultedMr Gillman-Harris. Because you will have to keep your conclusions in mindwhen you answer Question 6, you will find it helpful to write them down ona separate sheet.Are you sure that the force used by Mr Nattrass-Bergquist in assaultingMr Gillman-Harris was greater, in the circumstances as you have decidedMr Nattrass-Bergquist actually believed them to be, than was reasonableto defend himself or Mr Wallace-Loretz?MURDER SCENARIO THREE Question 9Are you sure that at the time of assaulting Mr Gillman-Harris,Mr Wallace-Loretz did not assault him for the purpose of defendinghimself or Mr Nattrass-Bergquist?If your answer to Question 9 is "Yes", you are not required to answer Question10. Go on to answer Question 11.If your answer to Question 9 is "No", go on to answer Question 10.13 These are taken from the jury issues sheet for Mr Nattrass-Bergquist. Similar questions wereprovided in the jury issues sheet for Mr Wallace-Loretz.Question 10[Do not answer Question 10 if you answered "Yes" to Question 9]Before you answer Question 10, you must decide what were the circumstancesas Mr Wallace-Loretz actually believed them to be at the time he assaulted MrGillman-Harris? Because you will have to keep your conclusions in mindwhen you answer Question [10], you will find it helpful to write them downon a separate sheet.Are you sure that the force used by Mr Wallace-Loretz in assaultingMr Gillman-Harris was greater than was reasonable to defend himself orMr Nattrass-Bergquist in the circumstances as you have decidedMr Wallace-Loretz actually believed them to be?[100] Although it would have been preferable for the issue of self-defence to be dealtwith the same way in each scenario, the differences are not of any consequence. Theimportant point is that the summary correctly directed the jury as to the matters theywere required to consider in answering these questions.[101] In his written submissions on appeal, Mr Kovacevich submitted that puttingthe issue of self-defence as a "double negative" was both prejudicial to the appellantsand confusing to the jury. We do not accept this submission. It is necessary to framea question as to self-defence in this way because the onus is on the Crown to disprovethe defence. Putting the issue in any other way risks confusing the jury as to wherethe onus lies.[102] Mr Gibson's objections to the treatment of self-defence in the issues sheet werethat the questions were posed in a manner that had the "potential to complicate andcompromise" the defence, focused on the assault rather than "promoting the defenceof self-defence", and did not direct the jury to determine the circumstances as theassailant believed them to be at the relevant time. Mr Gibson referred us to a differentdirection given in another case, which Mr Gibson submitted was a "model" of its typeand was to be contrasted with the Judge's direction.[103] None of these objections has merit. The questions to the jury in the issuessheet, read with the explanatory section of the summary, were accurate. The referencesto "assault" in the questions were apt because the fact of an assault, by one or bothappellants, was common ground. The issue was whether that assault was unlawful.As to the third point, the Judge directed the jury in the summary that the first matterthey had to consider in the context of self-defence was the prevailing circumstancesas the assailant — whichever appellant that should be — believed them to be.Moreover, questions six and 10 repeated this direction in scenarios two and three.[104] The final objection, raised by Mr Kovacevich, was that the issues sheetinevitably led to a verdict of guilty. This was Mr Kovacevich's overarchingsubmission as regards the various objections taken to the issues sheet. As appearsfrom our reasons above, we do not accept this submission. The issues sheet for eachscenario stated to the jury that they were to return a verdict of not guilty on the murdercharge if they were not satisfied as to causation, or if they were not so satisfied thatthe Crown had failed to disprove self-defence.[105] For these reasons, we do not accept counsel's submissions that a miscarriagearose because of deficiencies in the issues sheet.Result[106] Mr Wallace-Loretz's application for an extension of time in which to file hisnotice of appeal is granted.[107] The appeals against conviction are dismissed.Solicitors:Crown Law Office, Wellington for Respondent