SWAIN v R [2018] NZCA 259

SWAIN v R [2018] NZCA 259 [19 July 2018]ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,OCCUPATION OR IDENTIFYING PARTICULARS OF WITNESSESMR AND MRS C PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAMES,ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OFWITNESSES MR A, MR AND MRS B AND ANOTHER WITNESS REMAINSIN FORCEIN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA723/2015[2018] NZCA 259BETWEEN NEIL RAYMOND SWAINAppellantAND THE QUEENRespondentHearing: 14 May 2018 (further submissions received 7 June 2018)Court: Asher, Venning and Mander JJCounsel: A M Simperingham, H B Vaughn and S D Taylor for AppellantM J Lillico and Z R Johnston for RespondentJudgment: 19 July 2018 at 11 amJUDGMENT OF THE COURTA The application to adduce further evidence is declined.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.D Order prohibiting publication of names, addresses, occupations oridentifying particulars of witnesses Mr and Mrs C pursuant to s 202 of theCriminal Procedure Act 2011._________________________________________________________________REASONS OF THE COURT(Given by Venning J)Table of ContentsPara NoBackground [3]The trial [13]The appeal [18]Miscarriage [21]The trial counsel issue [24]Resources [26]The cyanide issue [31]Closing address [33]Cross-examination of Ms McKay and Mr and Mrs B [35]Jason Whakarau [38]Failure to call or pursue other witnesses [47]Jerry Sua [50]Peter Akins [51]Shayden Britton [52]Coreen Prouse (nee) Reuben [54]Jacob Mamea, Jason and Lance Lovejoy [55]Nikki Cunningham, Meriana Love and Monica Dick [56]Nathan Anderson [59]Cross-examination of Mr C [62]Mode of evidence application [70]Mistrial application [72]Conclusion [79]Directions [80]The difficulties with the AVL connection [89]The sentence appeal [97]Result [103][1] Whetu Hansen was last seen alive at Neil Swain's property on24 November 2013. It is accepted Mr Hansen has been killed. His body has neverbeen found. Mr Swain was convicted of Mr Hansen's murder following a jury trial.Brown J sentenced him to life imprisonment with a minimum period of imprisonment(MPI) of 14 years.11 R v Swain [2015] NZHC 3241.[2] Mr Swain appeals against conviction and sentence.Background[3] The evidence at trial disclosed that Mr Hansen and Mr Swain were well-knownto each other. They shared a common interest in Ford vehicles. Mr Swain had anumber of cars and car parts on his property at Linton. Mr Hansen stored some of hiscars at Mr Swain's property.[4] On 24 November 2013 Mr Hansen drove to Mr Swain's address in hisFalcon ute. The forensic evidence was that Mr Hansen was killed by multiple gunshotwounds inflicted while he was seated in the driver's seat of his ute at Mr Swain'sproperty. His body was then dragged out through the driver's door and placed in thetray of the ute where it remained for a number of days before being disposed of.[5] Mr Swain went to his friend Mr C's house in Ashhurst on the night of24 November 2013. Mr C said Mr Swain confessed to him that he had killedMr Hansen and asked for his help. Mr C said Mr Swain told him that Mr Hansen hadstolen from him and that he, Mr Swain, had shot Mr Hansen five times, the first shotwhile Mr Swain was standing and the last four shots while he was in the ute.He showed Mr C four bullet cartridges. Mr Swain asked Mr C to help him dispose ofthe body. Mr C had worked in a mortuary and on an earlier occasion had givenMr Swain a body bag. Mr C told Mr Swain the body would fit in a 44-gallon drum.Various locations as to where the body might be dumped were discussed.[6] Mr C later reported Mr Swain's admissions to a police officer.[7] On 3 December 2013 Mr Swain went to see another friend, Mr A, who owneda welding and engineering business in Palmerston North. At Mr Swain's request Mr Atook the top off a 44-gallon drum and cut holes in the side of it. Mr Swain returnedthe following morning and had Mr A weld the lid of the drum down. Mr A could seewhat appeared to be heavy industrial plastic inside the drum. Mr Swain came back inthe afternoon and said something to the effect of "That nigger won't be stealing offme anymore" and referred to dumping the drum in the Whanganui River.[8] Mr Swain later gave different accounts of Mr Hansen's death to other parties,including Mr and Mrs B and his former partner, Lynaire McKay. He told Mr andMrs B that Mr Hansen arrived at his property wounded. He said Mr Hansen hadrefused an ambulance and had left with another person. He told Ms McKayMr Hansen was fatally wounded when he came to his property, but refused anambulance and died in Mr Swain's arms.[9] The police searched Mr Swain's property on 5 December 2013. They foundMr Hansen's ute in a shed and observed bloodstains and other signs that a dead bodyhad been left on the tray of the ute. The pattern of bloodstaining was consistent withMr Hansen having been fatally wounded in the driver's seat and then dragged alongthe shed floor to the tray of the ute. There was a smell of decay in the shed. Maggotsor fly larvae about four to six days into their developmental life were present, whichsuggested the body had been on the tray of the ute for some time.[10] In the course of searching Mr Swain's property, the police also locatedammunition, explosives and a quantity of cyanide.[11] On 9 December 2013 Mr Swain voluntarily attended the Palmerston NorthPolice Station. He told the police the explosives were not his but declined to speakfurther. He was arrested for Mr Hansen's murder in May 2014.[12] Prior to trial Mr Swain pleaded guilty to a number of charges includingpossession of a firearm, explosives and cyanide.The trial[13] The Crown case against Mr Swain was a circumstantial one. It relied inparticular on the admission Mr Swain had made to Mr C, the steps that Mr Swain hadadmittedly taken to dispose of Mr Hansen's body and the forensic evidence thatMr Hansen had been killed at Mr Swain's property.[14] Mr Swain was represented by co-counsel, Mr Winter and Mr Antunovic.Mr Swain gave evidence at trial. His case was that Mr Hansen had come to hisproperty during the afternoon of 24 November looking for a windscreen for his car.He helped Mr Hansen find a windscreen then left him to it as he, Mr Swain, was goingto see a friend, Ms McQueen. Mr Swain took his dog with him.[15] Mr Swain said that as he was leaving the property he saw two people draw upin a Japanese car. He knew the name of one, but not the other. He said one lived inWhanganui and one over Foxton way. After about three quarters of an hour hereturned to his property. There was no sign of Mr Hansen although his ute was stillthere. The other two people were just leaving in their car. He said they told himMr Hansen had gone to get another car.[16] Mr Swain said that after having something to eat he shifted Mr Hansen's uteand at that stage noticed blood on his hands. When he checked the ute again he foundMr Hansen's body in the tray under the tonneau cover, together with a gun. Mr Swainsaid he did not call the police because he did not think the police would believe him.He was not on the best of terms with them because of a previous incident. Some yearsearlier he had planted an explosive device in the Sydenham Police Station. As a result,he became known as "Bomber" Swain.[17] Mr Swain accepted he had spoken to Mr C on the night of 24 November.He said he did so because Mr C had supplied Mr Swain with the gun and he in turnhad sold it to Mr Hansen. They discussed how to dispose of the body. Mr Swainaccepted that he put Mr Hansen's body in the 44-gallon drum but said that after Mr Ahad welded the lid, he left the drum "around the Foxton area" at the home of one ofthe two men who had been at his property on 24 November. He assumed the two inthe car were the ones that "did it" and, as he was annoyed at the trouble they hadcaused him, he left the drum with the body where one of them lived. He denied puttingthe drum in the Whanganui River. He would not disclose the address where he left it.Nor was Mr Swain willing to disclose the name of the person who had been to hishome at the time of Mr Hansen's disappearance.The appeal[18] Mr Swain's appeal against conviction was wide-ranging. In oral submissions,his counsel Mr Simperingham focused on the following points:(a) trial counsel incompetence;(b) the Judge's failure to give appropriate trial directions; and(c) the interruptions during Mr C's evidence caused by the AVL facilities.[19] In support of the appeal against sentence Mr Taylor for Mr Swain submittedthe trial Judge erred in uplifting the MPI because of Mr Swain's previous criminalconvictions.[20] Mr Swain made several affidavits in support of the appeal and wascross-examined. Both trial counsel, Mr Antunovic and Mr Winter, gave affidavitevidence. Mr Winter was also cross-examined. Mr Antunovic was not required forcross-examination.Miscarriage[21] The appeal against conviction is advanced on the basis that a miscarriage ofjustice has occurred.2 "Miscarriage of justice" is defined in s 232(4) of theCriminal Procedure Act 2011 as: any error, irregularity, or occurrence in or in relation to or affecting the trialthat—(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial [22] A real risk arises if there is a reasonable possibility that a not guilty (or a morefavourable) verdict might have been delivered if nothing had gone wrong.3Irregularities which "plainly could not, either singularly or collectively, have affectedthe result of the trial" are not miscarriages of justice for this purpose.4[23] To establish that an unfair trial has resulted, the error, irregularity or occurrencemust be of sufficient seriousness to warrant the verdict being set aside without further2 Criminal Procedure Act 2011, s 232(2)(c).3 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110]; and Wiley v R [2016] NZCA 28,[2016] 3 NZLR 1 at [29].4 R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30]. See also Wiley v R, above n 3, at [28].inquiry.5 If it is of sufficient seriousness it will be unnecessary to consider whetherthe error, irregularity or occurrence may have affected the outcome of the trial.6Trial counsel error on a fundamental matter will result in an unfair trial.7 However, notevery error, irregularity or occurrence will result in an unfair trial.8 The assessment isto be made in relation to the trial overall.9The trial counsel issue[24] Although Mr Swain raised numerous points in his affidavits,Mr Simperingham focused his submissions on the following challenges under thegeneral heading of 'trial counsel incompetence':(a) resources;(b) the cyanide issue;(c) closing address;(d) failure to adequately cross-examine Ms McKay and Mr and Mrs B;(e) failure to follow Mr Swain's instructions re Mr Whakarau;(f) failure to investigate or call potential witnesses;(g) failure to adequately cross-examine Mr C;(h) mode of evidence issues; and(i) failure to pursue a mistrial application.[25] We proceed to analyse those issues.5 Wiley v R, above n 3, at [41].6 At [37].7 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].8 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78].9 Wiley v R, above n 3, at [35].Resources[26] Mr Simperingham submitted that counsel had not applied sufficient resourcesto Mr Swain's defence. Two counsel were not enough. He suggested counsel shouldalso have engaged private investigators to follow the numerous "leads" Mr Swain hadidentified. The "leads" related to persons who might have had a reason to harm or killMr Hansen.[27] There is a fundamental disconnect between the theme of this submissionadvanced on behalf of Mr Swain with the position that he took at trial (and which hestill maintains on appeal). On Mr Swain's evidence he recognised the two people inthe car who were at his property with the deceased on the day he was killed, knowsthe name of one of them and where they live, yet he refuses to name them or providetheir addresses to enable his counsel or the police to investigate their involvement.Instead, Mr Swain suggests that a number of other people may have had a motive tokill Mr Hansen and says his counsel was incompetent because they did not pursuethose "leads".[28] Both Mr Winter and Mr Antunovic are experienced criminal barristers.Their evidence, including Mr Winter's cross-examination, confirms that they preparedproperly for trial. As noted, Mr Swain gave evidence. Both counsel met withMr Swain on numerous occasions. A full brief running to some 20 pages was preparedfor Mr Swain. Mr Swain discussed the brief with counsel and made severalamendments to it. He then initialled each page and signed the brief. We rejectMr Swain's evidence that he did not agree with what was in the brief he signed.The very full brief formed the basis of Mr Swain's defence.[29] We are satisfied counsel would have employed a private investigator (or soughtlegal aid for one) if there was a proper purpose and something to be gained by doingso. However, for the reasons that follow, the "leads" that Mr Swain suggested shouldhave been followed up were of little value or relevance. Mr Swain had the best "lead"under his own control, namely the two people in the Japanese car at his property onthe day Mr Hansen was killed, but was unwilling to enable counsel to pursue it.[30] There is a related point regarding preparation for trial. Mr Swain also criticiseddefence counsel's approach to disclosure. It is apparent that the first trial datescheduled was vacated in July 2015 because of late disclosure by the police.Defence counsel sought and obtained an adjournment on that basis. The defenceobtained summaries of intercepted conversations. Mr Swain was provided with accessto a computer to review electronic disclosure. That led to a further exhibit beingproduced at trial regarding text records. We are satisfied the defence were properlyprepared for trial and obtained all relevant disclosure. We note that Mr Simperinghamdid not pursue the argument that counsel should have sought the appointment of anamicus to review some redacted material relating to Mr C.The cyanide issue[31] Mr Swain next criticised counsel for the way they dealt with the cyanide issue.Prior to trial Mr Swain had pleaded guilty to possession of cyanide, possession ofweapons and ammunition and other "peripheral" charges. Mr Swain said that he didnot want to plead guilty and was pressured, or "badgered" into pleading guilty to thesecharges. Mr Winter, however, said that Mr Swain ultimately accepted counsel's adviceto plead guilty. Having observed Mr Swain give evidence we are satisfied that he isnot a man who could have his will easily overborne. He is a mature man withconsiderable life experiences. He was able to express himself firmly and forcefully.We find that although Mr Swain may have questioned the wisdom of pleading guiltyto those charges, ultimately he accepted counsel's advice that it was an appropriatecourse to take. Mr Swain effectively conceded as much in cross-examination beforeus. Tactically it was a sensible matter to take that issue away from the jury'sconsideration.[32] Mr Swain also criticised counsel for failing to pursue a submission to the jurythat, if he had wanted to murder Mr Hansen, he had the cyanide available and wouldhave used it to kill Mr Hansen rather than shooting him. Mr Winter could not recallthe suggestion being raised. Even if it had been raised the sensible advice would havebeen not to pursue such a proposition in the defence closing. The proposition onlyneeds to be stated to highlight the difficulties that such an approach would have causedthe defence. It would have invited the jury to find that, while Mr Swain was capableof murdering Mr Hansen, he would have done it in a cleaner way. This was morelikely to prejudice Mr Swain than to help him. Counsel are not required to raise everydetail the defendant may wish to cover in a closing address.10 Counsel must tailortheir address to the circumstances of the case and the evidential issues raised.11Counsel satisfied that requirement in the present case.Closing address[33] Mr Swain next criticised another aspect of Mr Winter's closing address to thejury. He submitted that Mr Winter told the jury that Mr Swain would be willing to beconvicted of murder. What counsel said was:[120] And it's really important also, in my submission members of thejury, to remember the context that these two people operated within. It's notthe sort of rules that most of us operate by. They operate and live in a differentworld.[121] Neil Swain has told you he would rather be convicted of murderhimself than name those who are responsible for Whetu Hansen's death. Thatwas the effect of his evidence on Friday. That he would rather be convictedof murder himself than name those that are responsible for Whetu Hansen'sdeath.[122] Now I accept that in any normal sort of society that would make nosense at all. But in theirs, in my submission, it makes perfect sense. Andwhen Neil Swain explains that position by saying "I don't want to be the nextvictim thank you". That statement rings true. Neil Swain moves at least someof the time in circles where nark is a very dangerous label. And he was atpains to tell you on Friday that he has never done that. [34] What Mr Winter put to the jury in closing was Mr Swain's evidence.The defence had to explain why Mr Swain would not tell the police or counsel whothe people in the Japanese car were even though he knew where both lived and knewthe name of one of them. The only explanation could be that Mr Swain's life was atrisk if he disclosed the information. Counsel dealt with this difficult issueappropriately by facing up to it and seeking to explain Mr Swain's position in a waythe jury would understand.10 Ross v R [2017] NZCA 587 at [46].11 E (CA113/2009) (No 2) v R [2010] NZCA 280 at [27].Cross-examination of Ms McKay and Mr and Mrs B[35] Ms McKay was Mr Swain's former partner. The evidence that she andMr and Mrs B gave was largely exculpatory for Mr Swain, at least to the extent thatthey confirmed he told them he was not responsible for Mr Hansen's death.Mr and Mrs B said Mr Swain stayed with them for a few nights. He told them thedeceased had turned up at his property injured but had refused an ambulance and leftwith another person. Ms McKay's evidence was to similar effect. She said Mr Swaintold her that Mr Hansen was fatally wounded when he came to his property, but refusedan ambulance and died in Mr Swain's arms.[36] Mr Swain now says counsel should have cross-examined Ms McKay and Mr Bto attack their credibility based on various intercepted phone calls. After Mr Swainwas remanded in custody, Mr and Mrs B assisted Ms McKay with overseeingMr Swain's property. In one call Mr B indicated he knew nothing about whathappened to Mr Hansen. In another call Ms McKay and Mr and Mrs B discussedselling property belonging to Mr Swain. Mr Swain also referred to Ms McKayreportedly wanting someone to burn the property down for the insurance money.[37] Although Mr Swain raises a number of points about Mr and Mrs B andMs McKay's evidence on this appeal, Mr Swain's written instructions to counsel priorto trial were that what Mr and Mrs B said was "generally correct". That was afterMr Swain had an opportunity to hear the intercepts. Mr Swain did not provide writteninstructions regarding the issue he now seeks to raise. It would, in any event, havebeen entirely counterproductive. It was a reasonable approach for defence counsel notto seek to attack Mr and Mrs B. The defence had obtained helpful evidence incross-examination including that Mr Swain had denied any responsibility forMr Hansen's death. Ms McKay also accepted that Mr Swain had told her that he hadnot killed Mr Hansen. There were risks in particular involved in an attack onMs McKay. She may have responded adversely to direct challenges given the volatilenature of her relationship with Mr Swain and the fact they were separated at the time.Jason Whakarau[38] Mr Swain says that Jason Whakarau in particular had a reason to killMr Hansen. A number of years earlier Mr Whakarau had been shot in the leg byMr Hansen. Mr Swain says counsel should have called Mr Whakarau and pursued asubmission to the jury that Mr Whakarau could have killed Mr Hansen.[39] Mr Swain seeks to rely on statements from Aroha Smith, Wayne Lepper andMichael Davis to support his argument that Mr Whakarau may have killed Mr Hansen.Neither Ms Smith nor Mr Lepper have provided signed statements.[40] Ms Smith was interviewed by Senior Constable Strachan. She told theSenior Constable that she had been told by a cousin that Mr Whakarau killedMr Hansen. That is inadmissible hearsay. Mr Lepper was apparently a good friend ofMr Hansen. He told police he had heard "rumours" that Mr Whakarau had murderedMr Hansen. That evidence is inadmissible hearsay as well.[41] Of more potential relevance is the evidence of Mr Davis, who ran a dairy justdown the road from Mr Swain's property. Mr Davis was a prison officer. He saidMr Whakarau had come into the dairy on either the weekend of 23/24 November or30/1 December 2013. He recognised him. He said he saw Mr Whakarau drive off ina Jaguar car.[42] Mr Whakarau was listed as a Crown witness until shortly before the trial.The defence had the opportunity to have him called. Mr Winter said that on twooccasions he sought instructions from Mr Swain regarding the possibility thatMr Whakarau was involved in the murder, but Mr Swain instructed him thatMr Whakarau was not involved. Mr Winter says that ultimately it was agreedMr Whakarau would not be called.[43] Mr Swain disputed that Mr Whakarau was not called on his instructions.There is a direct conflict between Mr Swain and Mr Winter on this point.[44] We accept Mr Winter's evidence and reject Mr Swain's evidence on the issue.We note Mr Whakarau was mentioned in the brief of evidence Mr Swain signed.There was no suggestion in that brief that Mr Whakarau was in any way involved inthe murder. Mr Swain made several amendments to that brief but none in relation tothis aspect of it. Further, in one of the intercepted conversations involving Mr Swain,when reference was made to the police looking to speak to Mr Whakarau, Mr Swainwas recorded as saying "what the fuck would Jason Whakarau, fuck I thought he wasdown north somewhere".[45] A number of facts were admitted by agreement under s 9 of theEvidence Act 2006, including the following passage read out to the Court:Jason Whakarau, or known as Jason Phillips, is known to both the defendantand Whetu Hansen. It is not suggested that Mr Whakarau was directlyinvolved in the death of Mr Whetu Hansen, although Mr Whakarau was in theManawatu area on the 24th of November 2013. On 14 December 2003 atAshhurst, Mr Hansen discharged a firearm at Mr Whakarau and [sic]wounding him in the leg. Mr Hansen was charged in relation to the incidentbut the charges were later withdrawn because Mr Whakarau refused to giveevidence at trial.Mr Swain said he was unaware of the s 9 admissions but it is clear he took great interestin his trial and was involved with counsel throughout. He did not raise any issue withcounsel at the time that the s 9 admissions were read into evidence. We are sureMr Swain would have taken objection if the s 9 admission was not in accordance withhis instructions. We do not accept that Mr Winter would have permitted that to berecorded as an agreed fact without Mr Swain's instructions. We accept Mr Winter'sevidence that Mr Swain instructed defence counsel that Mr Whakarau was notinvolved in Mr Hansen's murder and that it was agreed he would not be called.[46] We are satisfied that no issue arises from the failure to call Mr Whakarau and/orMr Davis. Apart from Mr Davis' evidence, which could support an argument thatMr Whakarau could have been in the general area on 24 November, there is no directevidence linking Mr Whakarau to Mr Hansen's death. Mr Swain does not suggest hewas one of the two men on the property. He makes no mention of the Jaguar carMr Davis said Mr Whakarau was in. The Whakarau evidence has to be consideredagainst the background that on Mr Swain's own account he knew the two people mostlikely to have murdered Mr Hansen, who it would seem did not include Mr Whakarau,but refused to disclose their identity.Failure to call or pursue other witnesses[47] Mr Simperingham suggested there were a number of other witnesses,considered in turn below, who should have been spoken to by the defence and possiblycalled.[48] There are two aspects to the issue of further witnesses. First, to the extent theevidence of these witnesses is sought to be adduced as fresh evidence on this appeal,it does not satisfy the criteria for admission. Fresh evidence for an appeal must be setout in affidavit form.12 With the exception of Jerry Sua, that requirement has not beencomplied with. In the absence of that formality there is no basis for the Court toconclude the proposed witnesses would even be available. Mr Swain has sought tointroduce the witness statements by attaching unsigned statements or police job sheetsattributing statements to the proposed witnesses. That is not an acceptable practice.[49] Next, even if the requirements for admissibility were met, the statements donot advance Mr Swain's case. There can be no suggestion of an unfair trial throughcounsel failing to pursue the witnesses when their evidence could not have affectedthe outcome of the trial. That is apparent from the following discussion of thewitnesses Mr Swain proposed should have been interviewed and called.Jerry Sua[50] Mr Sua was a friend of Mr Hansen. Mr Sua has provided an affidavit of13 September 2017 in support of this appeal. His evidence is that he knew three peoplewho wanted Mr Hansen dead but he was not willing to name them. Yet he also says:"If Mr Swain did not kill Mr Hansen, I do not know who did". His evidence is nothelpful to Mr Swain.Peter Akins[51] Mr Akins was a prison guard in Whanganui Prison at a time when Mr Hansenwas imprisoned there. He told Constable Francis on 17 December 2013 that he hadfound a satellite phone in Mr Hansen's cell which was confiscated and which led to12 Court of Appeal (Criminal) Rules 2001, r 12B; and Clutterbuck v R [2017] NZCA 361 at [26].Mr Hansen being relocated to Waikeria Prison. Mr Akins believed Mr Hansen wasthen stabbed in Waikeria Prison and that Mr Hansen would one day seek retribution,we infer against him, Mr Akins. Mr Simperingham submitted that trial counsel couldhave contacted Mr Akins to discuss the matter in an attempt to gather "additionalinformation" that would possibly have led to some helpful evidence. That is entirelyspeculative.Shayden Britton[52] Mr Swain's evidence is that he told trial counsel Mr Britton had the potentialto provide helpful defence evidence. Mr Simperingham suggested Mr Britton couldgive evidence on how many vehicles were in the driveway at Mr Swain's property onthe afternoon of 24 November 2013. This could have corroborated Mr Swain'sevidence that he had left the property.[53] Defence counsel were aware of Mr Britton's evidence but, after discussion withMr Swain they could not see how the evidence of Mr Britton would have advancedMr Swain's defence. At most Mr Britton says he saw Mr Hansen at the house wherethe police say he was murdered. Mr Britton had no idea who Mr Swain was.He admitted he had lied to police on previous accounts. He has refused to make orsign a formal statement.Coreen Prouse (nee) Reuben[54] Ms Prouse was Mr Hansen's first cousin. She told the police that Mr Hansenhad told her at a relative's funeral in 2013 that threats had been made against him fromsomeone in Palmerston North and someone in Whanganui. Mr Hansen apparentlybrushed them off. The notes of the discussion with Ms Prouse were unsigned.The statement is, like a number of the above statements, inadmissible hearsay.Jacob Mamea, Jason and Lance Lovejoy[55] Mr Lance Lovejoy gave a statement to a police officer to the effect thatJacob Mamea was hired by another person to kill Mr Hansen over a drug debt.Mr Lovejoy did not sign the statement. Jason Lovejoy, Mr Lance Lovejoy's son, saidhe believed he was followed because of the statement that Mr Lance Lovejoy hadmade against Mr Mamea. No attempt has been made by Mr Swain's appeal team toobtain affidavit evidence from these proposed witnesses.Nikki Cunningham, Meriana Love and Monica Dick[56] Mr Swain asserts that he understood Ms Cunningham would say that the onlyperson she knew who wanted to kill Mr Hansen was Mr Sua. Ms Love and Ms Dickapparently made a 111 call concerning Mr Hansen's death.[57] We consider there is force in Mr Lillico's submission for the Crown thatMr Swain's criticisms of trial counsel for failing to pursue the various "leads" or tocall people as witnesses suffer from the following difficulties:(a) It is contrary to Mr Swain's refusal to name the people who, onMr Swain's own case, were most likely to have been involved in themurder.(b) Mr Swain has not asserted that any of the people were at his propertythe day that Mr Hansen was killed. There is no other independentforensic evidence that supports the suggestion that anyone other thanMr Swain killed the deceased. No evidence has been offered tochallenge the conclusions of the forensic evidence led at trial.(c) The evidence is not cogent. A number of the expressed motives arevague. The fresh evidence is in a number of instances hearsay.With the exception of Mr Sua's affidavit, which does not assistMr Swain, no attempts have been made by counsel on this appeal toconvert the material into an evidential form which would be ofassistance to this appeal.[58] We reject the criticism of defence counsel for failing to investigate a parade ofwitnesses who supposedly might have been able to give evidence about persons whomight have had a motive to harm Mr Hansen. The evidence is either inadmissible,lacks cogency, or both. We decline Mr Swain's application to adduce this evidence onappeal.Nathan Anderson[59] After trial Mr Winter found a note from Nathan Anderson on his file.He accepted Mr Swain must have given him the note prior to trial. The note was:Raymond [Hessell] offered me money on more than one occasion to take careof Whetu [Hansen] or to find out [where] he was. [Hessell] was extremelyangry with [Hansen] over a deal with a Mustang. From what [Hessell] toldme it was [Hansen] had [sic] ripped him off on [some] deal to do with the car.[60] Mr Swain says he was given the note while he and Mr Anderson were both inprison. Mr Winter accepted that he overlooked speaking to Mr Anderson.[61] Mr Swain made no reference to Mr Hessell in his extended brief of evidenceprepared for trial. There is no suggestion Mr Anderson took the matter any further.Nor is there any suggestion that Mr Hessell was one of the two people in the Japanesecar. Again no steps have been taken to obtain any further evidence from Mr Andersonfor the purposes of the appeal. Mr Winter's oversight in relation to the note has hadno impact on the fairness of the trial. Mr Anderson's evidence, like that of the otherproposed witnesses, would not have advanced Mr Swain's defence in any materialway. The fact he was not called does not establish a miscarriage of justice.Cross-examination of Mr C[62] Mr C was an important witness for the Crown. On the Crown case he was thefirst person Mr Swain spoke to after Mr Hansen's death. Mr C gave evidence thatMr Swain admitted to him that he had killed Mr Hansen. Mr Simperingham submittedthat the defence cross-examination of Mr C and the challenge to his evidence overallwas inadequate.[63] Mr Simperingham first submitted that counsel failed to properly pursue theissue of Mr C's computer. He submitted the computer was a significant piece ofevidence. Mr Swain considered the computer would hold evidence of Mr C's criminalactivities which would have severely damaged his credibility. Mr Swain says that hehad seen Mr C use his computer to show him how to do illegal things and Mr C emailedhim links to websites to purchase illegal things such as weapons. The police did notseize Mr C's computer. Mr Simperingham accepted that Detective Wilson wasquestioned about Mr C's computer but submitted the cross-examination was not takenfar enough.[64] We consider the criticism of counsel on this issue is overstated, as is thesignificance of what an analysis of Mr C's computer might have disclosed.Defence counsel had Detective Wilson accept that he was not aware of the contents ofthe computer ever being analysed and Mr C admitted purchasing and selling firearms.[65] Mr Simperingham next argued that a Graeme McGrath and Ronald andDavid Alden could have given evidence about Mr C's dealings with a Toyota HiluxSurf and other items of equipment which would have further damaged Mr C'scredibility.[66] David Alden could have given evidence that in 2013 he loaned his Hilux toMr C who had re-registered and changed the plate without authority and had then soldthe Hilux to Mr McGrath in May 2014.[67] Mr Simperingham suggested that the evidence would have shown Mr Ccapable of lying while giving evidence. Mr Antunovic did cross-examine Mr C aboutthe Hilux. It was put to him that he had seized the opportunity to take the Hilux andto make more dishonest financial gain from it. Mr C denied it, but Mr Antunovicextracted from Mr C that he had sold the Hilux on after he had been given it by a manwho went to prison.[68] The significance of these issues was the impact on Mr C's credibility.But Mr C's credibility was challenged very effectively by Mr Antunovic'scross-examination. Mr C was directly cross-examined by Mr Antunovic regarding hisprevious convictions on two occasions. Mr Antunovic established Mr C hadconvictions for dishonesty, theft and fraud between 1977 and 1979, for unlawfulpossession of firearms and assaulting a child during the 1980s, for failing to advise achange in circumstances entitling him to ACC payments he was otherwise not entitledto in the 1990s and 22 charges of obtaining by deception in 2003. Mr Antunoviceffectively obtained Mr C's acceptance of those convictions, including for dishonesty,before making the point that the big fraud he was "committing this decade" was hisevidence in the case before the jury.[69] The cross-examination of Mr C must be considered as a whole. Counsel'scross-examination of Mr C effectively challenged his credibility and reliability.The cross-examination laid the groundwork for a strong submission attacking Mr C'scredibility. As this Court has said, an appeal is not an occasion for a minute dissectionof whether aspects of the cross-examination could have been dealt with differently orbetter.13 We are satisfied counsel properly cross-examined Mr C on relevant aspectssufficiently to put his credibility and reliability in issue before the jury.Mode of evidence application[70] Mr Swain next criticised defence counsel for agreeing to the Crown applicationfor alternative modes of giving evidence in relation to Mr and Mrs C in particular.Mr C's evidence was ultimately taken by way of AVL link from hospital. Mr C wascritically ill at the time. It is inevitable that the application would have been grantedfor him in the circumstances. Mrs C also gave evidence by way of AVL.Her application would also have been granted. There is no presumption either way,for or against the use of alternative means of giving evidence. The considerationsunder s 103 of the Evidence Act are broad enough to have supported the decision topermit evidence to be given by an alternative means in this case for both Mrs C andMs McKay.[71] Ms McKay gave evidence from behind a screen. Given she was Mr Swain'sestranged partner it is extremely likely her application would have been granted aswell, even if opposed.13 Michaels v R [2014] NZCA 258 at [49].Mistrial application[72] Mr Simperingham next submitted trial counsel erred by failing to apply for amistrial when evidence was led of Mr Swain's previous convictions.[73] It was part of the defence tactic to lead evidence regarding Mr Swain's criminalconviction for bombing the Sydenham Police Station. A reason had to be provided toexplain to the jury why Mr Swain had not contacted the police when, on his evidence,he first found Mr Hansen's body at his property. The evidence was led from one ofthe first police witnesses. Later, while reading his brief of evidence, Detective Wilsonalso gave evidence of the conviction. Unfortunately the Detective's evidence wentfurther. He said he:[B]ecame aware that [Mr Swain] had serious violence convictions, inparticular convictions for the bombing of the Sydenham Police Station,kidnapping Crown witnesses at gunpoint and burning their respectiveproperties.The Detective also later referred to an extensive criminal history for "extremeviolence" and the use of weapons.[74] Mr Simperingham submitted that defence counsel should have applied for amistrial. Mr Winter was cross-examined on the point. Mr Winter accepted that it wasan oversight on his part not to prevent Detective Wilson from reading that section ofhis brief. But by the stage the evidence was given there was nothing that could bedone. He said consideration was given at the time as to whether to apply for a mistrialbut at that stage both he and Mr Antunovic felt that substantial inroads had been madeinto the Crown case and the decision was made not to apply for a mistrial.[75] The Judge dealt with the matter in his summing-up:[11] So please approach your task in a fair and rational way. I ask you toput aside any feelings of prejudice or sympathy. The evidence may have leftyou with impressions, whether good or bad, about either the defendant orwitnesses you've seen, or indeed even the deceased. It's only natural that fromtime to time you will have experienced emotional responses to what you'veseen and heard. But, when you sit down to deliberate in the jury room, pleaseput those emotions out of your mind.[12] Usually in criminal trials there is not evidence of a defendant'scriminal history. However this case is different. The defence haveacknowledged Mr Swain's prior convictions, at least in part to explain hisnickname Bomber. Now although it may seem obvious, it's important thatyou do not take those convictions into account in deciding whether Mr Swainis guilty or not guilty of the present charge. He's entitled to be tried only onthe evidence adduced in this Court, not by reference to his previous record.So my direction to you is to ignore the evidence you heard about his priorconvictions.[76] Mr Simperingham filed a further memorandum after the appeal, attachingsentencing notes relating to Mr Swain's historical convictions. He submits that thematter was compounded because Mr Swain did not have convictions for some of theoffences referred to by Detective Wilson. However, as Mr Lillico pointed out, theprevious offences Mr Swain was convicted of and sentenced for at the same time asthe Sydenham Police Station incident involved charges of burglary, wilful damage,aggravated burglary, arson, aggravated injury by rendering witnesses incapable ofresistance, and possession of a weapon.[77] An assessment of the impact of the disclosure of prejudicial material about adefendant must always be contextual.14 The present case had a number of unusualfeatures. The principal parties all had a background of significant criminal activity:Mr Swain, Mr Hansen, and Mr C all had criminal convictions. The defence were openabout Mr Swain's conviction for planting an explosive device at a police station.There were numerous references throughout the evidence to dishonesty, drugs, gangsand violence. The jury would have been well-aware that Mr Swain moved in thosecircles. The reason he gave for not telling the police who the people in the Japanesecar were was because he feared for his safety and was not a "nark".[78] This was a lengthy trial that ran from 27 October until 17 November 2015, sointo a fourth week. By the time Detective Wilson gave his evidence towards theconclusion of the Crown case the jury had heard a substantial amount of evidenceabout criminal activity. The convictions referred to would not have stood out asparticularly significant to the jury by that time. Even if an application for a mistrialhad been made following Detective Wilson's evidence, we do not consider the trialJudge would have acceded to such an application. A direction was sufficient.14 Edmonds v R [2015] NZCA 152 at [24].Conclusion[79] In summary, in relation to trial counsel competence, none of the issues raisedby Mr Simperingham on Mr Swain's behalf either individually or collectively lead usto conclude that there has been a miscarriage of justice in this case.Directions[80] Mr Simperingham next criticised the Judge for failing to give directions underss 122 and 123 of the Evidence Act. He submitted a direction as to reliability unders 122 should have been given, and a direction as to mode of evidence under s 123 wasrequired.[81] Section 122 provides that if, in a Judge's opinion, any admissible evidence maynevertheless be unreliable the Judge may warn the jury of the need for caution indeciding whether to accept the evidence and the weight to be given to it. Even if ajudge decides to give such a direction it is not necessary to use a particular form ofwords in giving the warning.15[82] Some Judges might have given an express and tailored direction regardingMr C's evidence. The issue is whether Brown J's failure to do so has led to amiscarriage. We do not consider it has. The challenge to Mr C's evidence was clearlybefore the jury. Mr Winter said in closing: when informant turned to witness Mr [C]'s mind turned to what is in it forme. And there is no doubt about that. And he certainly wanted to make surethat he wasn't gonna be charged with anything. And no there hasn't apparentlybeen any Solicitor-General's immunity but he said himself he was told"I didn't have to worry about that". Well that's turned out to be true hasn't it?And later:It's my submission that Mr [C]'s evidence takes on many of the characteristicsof what rugby watchers know as a rolling maul. He takes bits out, he adds bitsin. He takes away and adds because he has to keep it moving forward.15 Evidence Act 2006, s 122(4).And later:So Mr [C]'s evidence, in my submission to you members of the jury, is amoveable feast, and a dangerous one. But the worst aspect of it all must surelybe that he is a liar. He's a liar about small details, and he's a liar about bigdetails.[83] When addressing the jury about the defence case, the Judge repeated the pointsthat the defence had made concerning the unreliability of Mr C's evidence. The Judgediscussed Mr Winter's attack on Mr C:He was the subject of a vigorous attack, described as having confidencebordering on arrogance and being a liar. Metaphors used to describe hisevidence were a rolling maul and a moveable feast. Mr Winter focused on anumber of aspects of his evidence which were said to be unsatisfactoryincluding the claimed damage to Mr Hansen's watch, the denial that Mr [C]was in possession of Mr Hansen's cell phones on the night of 24 Novemberwhen they were polling as Ashhurst, the advice to Mr Swain to dispose of theshell cases by throwing them into the river. Mr Winter was also critical of theway in which it was said that Mr [C] responded to statements made byMr Swain during their taped prison visits, in particular by changing the subjectwhen Mr Swain made a statement that was favourable to himself.[84] The jury would have been in no doubt that Mr C's credibility was a centralissue for them. By repeating defence submissions the Judge underlined the point.We do not consider the failure to provide a more tailored s 122 direction has led to amiscarriage of justice in this case. As this Court said in Williams v R, where thecompeting contentions of the prosecution and defence have been made clear to thejury a direction under s 122 may be unnecessary.16[85] The Judge did fail to give a direction as to mode of evidence, which wasrequired by s 123. In failing to do so, the Judge was in error. However, again we aresatisfied that in the circumstances of this case the failure would not have affected theoutcome of the trial. There was no miscarriage.[86] Given Mr C's medical condition the reason for the AVL connection for hisevidence would have been apparent to the jury.16 Williams v R [2017] NZCA 176 at [47]–[48].[87] This is not a case of a complainant of sexual violation or an alleged victim ofviolence giving evidence by CCTV or behind a screen. In such a case the directionabout the use of CCTV or a screen has some real force and significance. In the presentcase the jury would have been well-aware that Mr C was not capable of attendingCourt to give evidence. It would not have been at all surprised at his evidence beinggiven by AVL. Mrs C and Ms McKay's evidence, although also given by alternativemeans, was not of the same moment as Mr C's evidence. In their case the failure togive a direction could only have prejudiced Mr Swain if the jury had ignored allthe Judge's other directions about the case. The Judge gave clear directions as toprejudice and sympathy.17[88] Further, in the context of this case and the nature of the evidence beforethe jury, including the way Mr C in particular responded forcefully tocross-examination, there is no risk that the jury may have taken anything againstMr Swain because the witnesses gave their evidence by alternative means.The difficulties with the AVL connection[89] Mr Simperingham noted that there were issues with the AVL facilities,particularly during the evidence of Mr C. The connection cut out on occasions duringthe course of Mr C's evidence-in-chief and cross-examination. Mr Simperinghamidentified two examples in particular. First, where Mr Antunovic was pressing Mr Cabout possession of Mr Hansen's phone, and second, where Mr Antunovic wasquestioning Mr C about his dealing in firearms.[90] The defence argument was that Mr Swain had left Mr Hansen's cell phoneswith Mr C and that explained why the phones were polling from the Ashhurst area onthe night of 24 November. Mr C suggested Mr Swain had other dodgy mates inAshhurst and that explained why Mr Hansen's phone was polling there on the night of24 November. Mr Simperingham submitted that before the failure of the AVL linkMr Antunovic had spent a number of minutes of cross-examination building up to theclimax to make the point before the jury that Mr C had lied in order to help himself to17 See for example the passage reproduced above at [75].escape possible prosecution. He submitted that when the AVL link cut out it meantthe full impact of the line of cross-examination was diminished.[91] The next point Mr Simperingham relied on related to the guns Mr C had soldto Mr Swain. During the cross-examination of Mr C on the sale of guns there were anumber of failures of the link. Mr Simperingham submitted that following the AVLfailure, the issues that had been built to were abandoned and not returned to. Therewere other examples of the AVL failings.[92] Mr C's evidence started after a lunch adjournment. He gave evidence thatafternoon, the next day and then his evidence was completed on the morning of thefollowing day. There were a number of breaks in the AVL connection whichinterrupted his evidence. While there were difficulties with the links during Mr C'sevidence, the breaks were on the whole very brief.[93] In respect of both issues that Mr Simperingham raised, the progressMr Antunovic had made was not affected by the interruption. In relation to the firstissue Mr Simperingham referred to, counsel had made the point that Mr Hansen'sphone was polling at Ashhurst late on 24 November and into 25 November, long afterMr C said Mr Swain had left his house. Mr Antunovic had also latched on to Mr C'sslip in referring to "other" dodgy mates in Ashhurst. The point would not have beenlost on the jury. Mr Antunovic was able to complete the cross-examination on thepoint when the link was restored.[94] In relation to Mr C's dealings with firearms Mr Antunovic had seemingly goneonto another topic before the interruption. By that stage Mr C had conceded that hemight have told police he had sold Mr Swain some three pump-action shotguns. Mr Chad also accepted that he had refused to answer counsel's previous questions aboutthis because he had forgotten selling the shotguns to Mr Swain. He did not want to beprosecuted. Mr C admitted selling six shotguns to Mr Swain. Mr C also accepted thathe had previously fitted silencers and had sold .22 rifles to Mr Swain. Mr Antunovichad put to Mr C that he had been involved in providing the .22 rifle that had beenfound on the back of the ute with Mr Hansen's body.[95] Although the link was lost at times, when the link was re-established counselwas able to conclude cross-examination. The cross-examination of Mr C wasconcluded on the final morning without interruption.[96] Having reviewed the transcript of Mr C's evidence in its entirety we aresatisfied that the interruptions did not affect the cross-examination or the impact thatMr Antunovic's cross-examination of Mr C would have made before the jury.While the technical issues with the AVL links were unfortunate, they were not such asto have led to miscarriage.The sentence appeal[97] The sentence appeal is pursued on the sole ground there should have been nouplift to the MPI for Mr Swain's prior offending.[98] In arriving at the MPI of 14 years, the Judge noted that the Crown contendedfor a MPI of 14 to 16 years as appropriate taking into account the other charges18 andMr Swain's previous convictions.19[99] Brown J considered the circumstances of the killing, namely the shooting ofMr Hansen in the cab of his ute a number of times, justified a MPI of at least 11 years.20The Judge then took into account Mr Swain's subsequent conduct and added onefurther year for that.21 Next, the Judge added a further year to reflect previous seriousconvictions and finally added an uplift of one further year to take into account theadditional seven convictions.22[100] Mr Taylor accepted the 11-year starting point and acknowledged there neededto be an uplift for the additional offences and the way that Mr Swain had acted after18 In addition to the sentence for murder Mr Swain was for sentence on seven other charges:(a) unlawful possession of a pistol;(b) four charges of unlawful possession of explosives;(c) possession of a hazardous substance, namely cyanide; and(d) storage of a hazardous substance, namely cyanide, in breach of the Hazardous Substancesand New Organisms Act 1996.19 R v Swain, above n 1, at [18].20 At [20].21 At [25].22 At [31].the killing, but challenged the uplift of one year for previous convictions.He submitted that the convictions were historic and did not support an uplift of oneyear.[101] This Court has said on a number of occasions that, in an appeal againstsentence, the focus should be on whether the end sentence was available to thesentencing court rather than how it was calculated.23[102] In this case, given the circumstances of the killing, the way Mr Swain treatedMr Hansen's body after he had killed him, the efforts he went to after the killing todisguise his involvement, his continued refusal to say where he disposed of the body,and the additional charges, a MPI of 14 years was readily available to the Judge, evenwithout having regard to the previous convictions. With the multiple gunshots, andthe abuse of the body during attempts to dispose of it and to cover up the killing, thiswas a callous murder. The additional charges added to that culpability, including asthey did possession of explosives, a rifle and ammunition and cyanide. When regardis had to those factors, a MPI of more than 14 years would have been open to theJudge.24Result[103] The application to adduce further evidence is declined.[104] The appeal against conviction is dismissed.[105] The appeal against sentence is dismissed.[106] To protect their identities we make an order prohibiting publication of thenames, addresses, occupations or identifying particulars of witnesses Mr and Mrs Cpursuant to s 202 of the Criminal Procedure Act 2011.Solicitors:Woodward Chrisp, Gisborne for AppellantCrown Law Office, Wellington for Respondent23 See for example Ripia v R [2011] NZCA 101 at [15].24 Sentencing Act 2002, s 86.