WINDERS v R [2018] NZCA 277

WINDERS v R [2018] NZCA 277 [31 July 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA668/2016[2018] NZCA 277BETWEEN QUINTON PAUL WINDERSAppellantAND THE QUEENRespondentHearing: 13 March 2018Court: Asher, Clifford and Gilbert JJCounsel: P J Morgan QC and J P Temm for AppellantA Markham and A J Gordon for RespondentJudgment: 31 July 2018 at 2.30 pmJUDGMENT OF THE COURT____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] Following a jury trial in the High Court at Rotorua, Quinton Winders was foundguilty of the murder of George Taiaroa. Mr Winders was convicted and sentenced byToogood J to life imprisonment with a minimum period of imprisonment of 17 years.1Mr Winders appeals against both his conviction and sentence.1 R v Winders [2016] NZHC 2964 [Sentencing decision].[2] The conviction appeal is advanced on three grounds. The first relates to theevidence of two (of three) witnesses who were called to support the Crown'scontention that Mr Winders has a propensity to react disproportionately tocomparatively innocuous events by shooting at or near people. The admissibility ofthe evidence of all three propensity witnesses covering four separate incidents wasconfirmed in a pre-trial ruling,2 and upheld on appeal to this Court.3 The correctnessof these rulings is not challenged in the present appeal. Instead, it is argued that twoof the propensity witnesses gave materially different evidence at trial about two ofthe incidents from that anticipated at the time of the pre-trial rulings such that theunfairly prejudicial effect of this evidence outweighed its probative value and the juryshould have been instructed to disregard it.[3] The second ground of appeal concerns evidence of statements made byMr Winders following his arrest on 4 April 2013. In his pre-trial ruling, Toogood Jheld that Mr Winders' detention was unlawful and in breach of his rights under s 22 ofthe New Zealand Bill of Rights Act 1990.4 However, the Judge found the evidencehad not been improperly obtained because there was no causal link between the breachand the obtaining of the evidence.5 Even if the evidence had been improperlyobtained, the Judge ruled that it still would have been admissible applyingthe balancing test in s 30 of the Evidence Act 2006.6 This ruling was also confirmedon appeal to this Court pre-trial.7 Nevertheless, Mr Morgan QC for Mr Winders invitesus to reconsider the correctness of this ruling, arguing that it was wrong and has led toa miscarriage of justice.[4] The third ground of appeal arises out of the way Toogood J dealt with a concernexpressed by two jurors during the course of the trial about the manner in whichthe jury foreperson was carrying out her role. The Judge dealt with the issueinformally, considering that it was a minor issue of jury dynamics. It is contended on2 R v Winders [2016] NZHC 1056 [Results judgment]; and R v Winders [2016] NZHC 1147[Reasons judgment].3 Winders v R [2016] NZCA 350 [CA judgment].4 Reasons judgment, above n 2, at [111].5 At [129].6 At [136].7 CA judgment, above n 3, at [54]–[58].appeal that the Judge should have discussed the matter with counsel and given theman opportunity to make submissions about how it should be dealt with.[5] Two issues are raised on the sentence appeal. The Judge found that s 104(1)(b)of the Sentencing Act 2002 was engaged because the murder involved calculatedplanning and accordingly a minimum period of at least 17 years' imprisonment wasrequired.8 This finding is challenged on appeal. The second issue is whethera reduction in the minimum period of imprisonment ought to have been allowed totake account of the breach of Mr Winders' rights under the New Zealand Bill ofRights Act when he was unlawfully detained for questioning.[6] We commence by summarising the main features of the Crown and defencecases in order to provide the context for the assessment of these appeal grounds.Crown case[7] On 19 March 2013, Mr Taiaroa was operating a "stop/go" sign at a single lanebridge near Atiamuri when he was fatally shot in the head at close range witha .22 calibre rifle by the driver of a blue-coloured Jeep Cherokee. The Crown's casethat the killer was Mr Winders was based on circumstantial evidence.[8] Mr Winders was the owner of a blue Jeep Cherokee. He collected the Jeepfrom a panel beater's shop in Stratford at about 9.30 am on the day of the murder.He was captured on CCTV at 1.30 pm in a Post Shop in Taumarunui registeringthe vehicle. Other CCTV footage taken at about 1.40 pm in Taumarunui showeda Jeep Cherokee fitting the description of Mr Winders' vehicle heading in the directionof Atiamuri. There was sufficient time from this sighting for Mr Winders to drive tothe scene and commit the murder which occurred just prior to 3.15 pm.[9] A witness identified Mr Winders from a photo montage 24 days later as beingthe driver of a blue Jeep Cherokee who tailgated her and then overtook dangerouslyon the day of the murder while she was travelling south on Tirohanga Road,approximately 10 km from the scene. Other witnesses reported seeing8 Sentencing decision, above n 1, at [24].a Jeep Cherokee speeding along unsealed forestry roads near Benneydale, an areafamiliar to Mr Winders. Some witnesses reported that the number plates were missingfrom the Jeep. The Crown case was that Mr Winders removed the plates at some stageafter leaving Taumarunui.[10] On the day of the murder, Mr Winders was due to carry out fencing work on afarm in Benneydale owned by his friend, Kieron O'Dwyer. Mr Winders toldMr O'Dwyer that he did not attend because his Jeep had a flat battery and he could notdrive it. This was a lie. Mr Winders later gave a different explanation to Mr O'Dwyer,telling him that when he heard about the murder on the radio after driving throughTaumarunui and learned that police were looking for a blue Jeep Cherokee anda .22 rifle, he panicked and drove home. However, there was no media report thata .22 rifle was involved.[11] While searching Mr O'Dwyer's farm, police located a green gun case off atrack in the bush containing a box of .22 ammunition that did not belong toMr O'Dwyer. The Crown suggested that this belonged to Mr Winders relying onevidence that he used a gun bag which may have been green.[12] Between 19 March and 4 April 2013, Mr Winders changed the appearance ofhis Jeep by removing the tow bar, spare wheel, mud-flaps and the "Jeep" insignia andby adding a red reflector strip. The tow bar and spare wheel were later located bypolice hidden in bushes on a property adjacent to Mr Winders' farm.[13] When Mr Winders' house was searched on 4 April 2013, his two .22 rifles weremissing. Mr Winders claimed that they had been stolen in 2009 and he had reportedthe theft to the police. However, there was no record of this. From the serial numbersheld on record, police were able to identify the particular factory in Canada where oneof Mr Winders' rifles had been manufactured. Subsequent testing of two other riflesmanufactured in this factory with serial numbers close to that of Mr Winders' rifleproduced bullet markings that matched the markings on a bullet fragment removedfrom Mr Taiaroa's head.[14] Mr Winders lied when he was interviewed by the police following his arrest on4 April 2013. He initially stated that after picking up the Jeep from the panel beaterand refuelling, he drove back to his farm because the vehicle was not insured and hedid not want to drive it. He later said that he may have gone from Taumarunui towardsTe Kuiti to look at a fencing contract for a person associated with Lake Valley Farmsbut he only had a look because someone else had the contract. He said that the Jeepdid not have a tow bar and the Jeep parts recovered from the adjacent farm were nothis, although other items found in that location were. In explanation, he said that theseitems had been stolen from his property.[15] Although Mr Taiaroa was not known personally to Mr Winders, their paths hadcrossed a week earlier. On 12 March 2013, Mr Winders was a passenger in a vehiclebeing driven by his father. They were towing a stock trailer having delivered cattlefrom Mr Winders' father's property in Rotorua to Mr Winders' farm. As they wereheading north on State Highway One north of Taupo in the direction of Rotorua theyencountered roadworks where Mr Taiaroa was operating a stop/go sign (this was on aseparate section of roadway approximately eight km away from where the murderoccurred). Mr Taiaroa was late signalling their vehicle to stop and, as a result, theyhad to reverse to allow ongoing traffic to pass. The trailer collided with the vehiclebehind causing it minor damage which cost $989.58 to repair.[16] When questioned by the police, Mr Winders disputed that they had caused thisdamage and suggested that Mr Taiaroa may have known the driver of the damagedvehicle. He said there was an "oddness about it". The police later located a notebeside the phone at Mr Winders' parents' house recording instructions to respond toanyone who called about the incident to say that the caller "must have the wrong namebecause we like don't know anything about it. We did have a trailer but that wentmissing a while back. Sorry, we can't help you." There was no dispute that this notehad been written by Mr Winders.[17] The Crown also called evidence to show that Mr Winders and his father madea similar journey the day before the murder, on 18 March 2013, and may haveencountered Mr Taiaroa then.Defence case[18] The sole issue was whether the Crown could prove beyond reasonable doubtthat it was Mr Winders who shot Mr Taiaroa. As Mr Morgan described it to us,the heart of the defence case was that it was inconceivable that Mr Winders wouldhave driven from Stratford via Taumarunui to Atiamuri, a round trip of aboutseven hours, to murder a man he did not know over a trivial incident that had occurreda week before. Further, it was unlikely that Mr Winders would have known theparticular location where Mr Taiaroa was working that day.[19] Mr Winders chose not to give evidence. Mr Temm, who appeared forMr Winders at trial, mounted a comprehensive challenge to all aspects ofthe Crown case, including by highlighting inconsistencies in the evidence given bythe witnesses who saw the Jeep Cherokee — some described it as being green in colourand no one identified the vehicle they saw as having a black bonnet or a black andpinstriped left-front panel, both of which were distinctive features of Mr Winders'vehicle. Some witnesses also described the driver as having a darker skin colour thanMr Winders.[20] Mr Temm challenged the reliability of the evidence given by the witness whoidentified Mr Winders as the driver, given that she did not know Mr Winders andwould have seen him only fleetingly. Further, her description of the Jeep did notentirely match Mr Winders' vehicle.[21] Because of the way the guns were assembled in the Canadian factory,Mr Temm demonstrated that the proximity of the serial numbers did not necessarilyreflect the order in which the gun barrels were manufactured. This potentiallyundermined the strength of the evidence regarding the markings on the bullet.[22] Mr Temm suggested that Mr Winders' statements to the police on 4 April 2013about his movements on 19 March may have been confused and inaccurate because,at that time, he did not realise the significance of the questions he was being asked andhe was ill-prepared to answer them.Conviction appealFirst ground — propensity evidence[23] Leighton Gleeson gave evidence of an incident that occurred while he and hisfather were spotlighting for possums from a road beside his friend's farm, whichadjoined Mr Winders' property. Mr Gleeson could not fix the date of this incidentother than to say that it would have been prior to April 2009 and happened around10 or 11 pm. Mr Gleeson spotted a possum in a tree and fired one shot at it.About a minute later he heard four or five gunshots coming from the direction ofMr Winders' house. Mr Gleeson described these as "warning shots" and said he didnot believe they were aimed at him. He got back into his vehicle and drove off downthe road. Mr Gleeson asked Mr Winders about the incident when he saw him a fewdays later. Mr Winders replied that he did not know it was him.[24] Mr Morgan submits that this evidence was materially different to what wasanticipated Mr Gleeson would say when the propensity ruling was made pre-trial.In particular, he submits that, prior to the trial, the evidence Mr Gleeson was expectedto give was that Mr Winders fired "effectively, at them".[25] We disagree. The anticipated evidence from Mr Gleeson was summarisedby Toogood J in his ruling.9 Relevantly, the Judge stated:[27] Mr Gleeson's father was spotlighting and [Mr Gleeson] fired one shotat a possum in the pine trees, in a direction away from Mr Winders' house.About a minute later, there were four or five shots fired from behind the pair,from the direction of Mr Winders' house, and up into the same area ofpine trees. The shots sounded to Mr Gleeson as though they had come from a.22 rifle. Mr Gleeson regarded the shots as a warning to "cut it out", so theygot back into the vehicle and drove away.[28] A couple of days later, Mr Gleeson spoke to Mr Winders about theshots. When asked Mr Winders, "What did you do that for?" Mr Windersreplied, "Oh, I just didn't know that it was you." Mr Gleeson was satisfiedwith that answer and the issue never came up again.[26] The evidence Mr Gleeson was expected to give for the purposes of the pre-trialruling was in all material respects the same as the evidence he gave at trial.9 Reasons judgment, above n 2, at [25]–[28].Mr Gleeson never departed from his evidence that these were warning shots andwere not fired at them. There is therefore no proper basis to revisit the pre-trial ruling.[27] Bryan Kuriger owns a farm neighbouring Mr Winders' property. He gaveevidence about an incident that occurred around 9.30 or 10.30 pm one evening in 2011.He and a friend were spotlighting from the road near Mr Winders' property.After stopping, Mr Kuriger heard a crack he thought may have been made by a deer.When he turned and shone the spotlight in that direction he heard a gunshot which hefelt confident came from a .22 rifle. He said that the bullet passed over their vehicle"pretty close". They immediately drove off. Mr Kuriger did not see who had firedthe shot and he never raised the issue with Mr Winders.[28] Mr Kuriger also described a second occasion, about a year later, when a similarincident occurred while he was pursuing a stag up a fence line on his property.He noticed goats running and then heard two shots "whistle up the gully" towards himfrom the direction of Mr Winders' property. Mr Kuriger thought that these shots werealso fired from a .22 rifle as warning shots but said that he did not see who firedthe shots and he never spoke to Mr Winders about it.[29] Mr Morgan submits that Mr Kuriger's evidence about the second incident alsomaterially differed from that expected for the purposes of the pre-trial ruling. This isbecause Mr Kuriger had not previously mentioned seeing the goats running shortlybefore hearing the two shots. Mr Morgan argues that this raises the possibility thatthe goats were disturbed by an unknown hunter who fired the shots. He says it is notcertain that it was Mr Winders who fired the shots, that they were aimed at Mr Kurigeror even whether they were intended as a warning.[30] We acknowledge these points. However, Mr Kuriger consistently stated, bothbefore and at the trial, he did not see who fired the shots and he never raised the topicwith Mr Winders. At no stage did Mr Kuriger suggest that the shots had been aimedat him. His consistent evidence was that the shots were fired up the gully towards himfrom the direction of Mr Winders' property, not that they had been fired at him.Again, we see no justification for revisiting the pre-trial ruling confirmed bythis Court.[31] In any event, we do not consider that any risk of a miscarriage of justice hasresulted from the introduction of this evidence. We accept Ms Markham's submissionfor the Crown that this evidence was not accorded disproportionate weight at the trialand the Judge's directions concerning it were careful and appropriate.[32] Ms Gordon, who led the prosecution at trial, made only brief mention ofthe propensity evidence in the course of her lengthy opening address. She signalledthat the jury would hear from three witnesses who "had shots fired in their directionto scare them off" while hunting near Mr Winders' property. Ms Gordon cautionedthat the Judge would "give you some very firm directions about how you can use thatevidence" but that the Crown would seek to demonstrate through this evidencethat Mr Winders had "a tendency to over-react to the behaviour of others" and haddone so "in the past by shooting towards people".[33] Prior to the propensity evidence being called, the Judge directed the jury as toits relevance and the reasoning process they would have to follow before placing anyweight on it in considering whether the Crown had proved that Mr Winders shotMr Taiaroa. Mr Morgan responsibly accepts that no criticism can be made of thesedirections. We consider they were entirely appropriate.[34] The Crown did not place significant weight on the propensity evidencein closing, describing it as a "small factor". Ms Gordon summarised the positionin these terms:But the Crown doesn't suggest, ladies and gentlemen, that this evidence ishugely significant to the overall Crown case. It's one small factor that youmight want to take in to account. If you are not satisfied that the defendanthas that propensity, either because you're not satisfied that he is the personwho fired the shots on those four occasions or you just simply think that it isnormal behaviour in the Ohura community, then just put that evidence to oneside, but what the Crown says to you is that even if you get to that point andyou say, "No, we're not going to consider that evidence, we don't think it helpsus" it does not mean that the Crown case is any weaker. The strength of theCrown case, the combined strands of the Crown case, are enough without thatevidence, the Crown says to you, to clearly show Mr Winders' guilt.[35] The Judge's summing up on the propensity evidence was also careful andbalanced. Little emphasis was given to the propensity evidence challenged in thisappeal, being Mr Gleeson's evidence and the second incident described by Mr Kuriger.Their evidence was addressed by the Judge as follows:[162] The Crown's position that actually shooting at or near people in andaround your farm is unusual behaviour, even in the back country of Taranaki.A warning shot over the head to Mr Gleeson, maybe, but firing close toMr Ford and his nephew and the other young man who was there, that is adifferent proposition you might think.[163] So you need to think very carefully about the evidence of thosewitnesses. I am not going to go through it in any detail, but are you satisfiedthat Mr Winders fired those shots? There is at least one example Mr Temmreferred to where Mr Kuriger said well he heard some shots being fired andsome goats running. Well you may think that on that evidence it does notprove very much.[165] But, of course, Mr Temm says that Mr Winders just is not the sort ofperson. He might have admitted chasing some poachers off his land or he mayhave said sorry to Mr Gleeson, "I did not realise it was you," but that is anentirely different proposition from saying he is the sort of person who woulddrive all that distance and kill somebody he did not even know. The Crown'spropensity evidence, he says, just does not prove anything.[166] Look at what you know about Mr Winders and his work ethic, a hardworker, a quiet man who kept to himself, well educated, done well at schooland university, no criminal convictions, no evidence of any misdemeanours oroffences committed with firearms. A man who retreats from conflict. Did notwant to go to the pub because he just felt anxious. And you have got Mr Janeand Mr Law actually shooting his goats and he steams up to them, albeit witha firearm in his car, and confronts them and you may think Mr Temm said inthe circumstances where he knew that they had done it, but he left them to it,did not pursue it. Well that is a matter for you, but you do need to be clearthat Mr Winders did fire those shots, that it does prove that he had a tendencyto overeact using firearms and that it helps you to prove the Crown's case thathe was the offender.[36] We reject Mr Morgan's submission that the Judge ought to have directedthe jury to disregard Mr Gleeson's evidence and Mr Kuriger's evidence aboutthe second incident. We are far from persuaded that a miscarriage of justice hasresulted from the admission of this evidence or the directions that were givenconcerning it. This ground of appeal fails.Second ground — police interview[37] Mr Winders was suspected of the murder of Mr Taiaroa and was undersurveillance by the police when he was found to be driving at 120 – 130 km/h betweenPutaruru and Rotorua in the very early hours of 4 April 2013. Mr Winders increasedhis speed to approximately 150 km/h as the police vehicle moved to overtake him.On 4 April 2013, members of the Armed Offenders Squad were deployed to arrestMr Winders, ostensibly for reckless driving the previous night. However, Toogood Jwas satisfied that the sole reason for the arrest was to confine Mr Winders for thepurpose of questioning him about the murder.10 The Judge accordingly found thatthe arrest and subsequent detention were arbitrary and in breach of Mr Winders' rightnot to be arbitrarily arrested or detained under s 22 of the New Zealand Bill of RightsAct.11[38] The Judge rejected a separate submission that Mr Winders was not sufficientlyinformed of the purpose of his detention (to question him about the murder) and of hisright to consult and instruct a lawyer without delay before answering any questions.12Accordingly, the Judge found that there had been no breach of s 23 of the New ZealandBill of Rights Act and he was satisfied that the interview was conducted fairly and inaccordance with the Chief Justice's Practice Note – Police Questioning (s 30(6) of theEvidence Act 2006).13[39] Despite the s 22 breach, the Judge found that the evidence had not beenimproperly obtained because there was no causal link between the unlawful detentionand the evidence Mr Winders gave in the interview.14 This was because Mr Windersshowed no reluctance to speak to the police officer about Mr Taiaroa's death andconfirmed on a number of occasions that he was happy to help with their inquiries.15Further, even if the evidence had been improperly obtained, the Judge considered thatit would still have been admissible applying the balancing test in s 30 ofthe Evidence Act.16[40] These conclusions were confirmed on appeal to this Court pre-trial.1710 Reasons judgment, above n 2, at [105].11 At [111].12 At [112]–[121].13 Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.14 Reasons judgment, above n 2, at [129].15 At [128]–[130].16 At [136].17 CA judgment, above n 3, at [53]–[58].[41] Mr Morgan submits that there has been a miscarriage of justice due tothe admission of the record of this interview into evidence. Although Mr Windersmade no confession, he made statements during the interview which the Crown reliedon at the trial to show that he lied about his movements on the day of the murder.Mr Morgan recognises that the Court will not generally depart from its earlierjudgment but he invites us to do so in this case contending that the decision was wrongand has led to a miscarriage of justice.[42] Mr Winders did not give evidence at the trial. There has plainly been no changeof circumstance relating to the police interview and no new evidence has come to lightsince this Court's earlier judgment was delivered that could have any bearing on theadmissibility of the interview. Nor has there been any relevant change in the law sincethe judgment was delivered. In short, there has been no change in the factual or legallandscape from that considered by this Court when it confirmed the pre-trial rulingthat the interview was admissible. Mr Morgan is simply asking this Court to find thatit erred in its earlier decision and to conclude that there has been a miscarriage ofjustice because the trial was conducted (in this respect) in accordance with thatjudgment. Mr Morgan is in effect asking this Court to reverse its earlier judgment anddirect a retrial on the basis that the interview is not admissible.[43] For reasons we will develop further below, we have concluded that in theabsence of some material change in the facts or the law the present attempt to relitigatein this Court the same issue that has already been determined by this Court must beresisted as amounting to an abuse of process. This is so even though the doctrine ofissue estoppel does not apply because this is a criminal case.18 Our conclusion doesnot leave Mr Winders without potential recourse. If he wishes to test the correctnessof this Court's decision that the interview was admissible at his trial, he can seek leaveto appeal to the Supreme Court. That is the appropriate course.[44] Section 101 of the Criminal Procedure Act 2011, which is in materially thesame terms as s 344A of the Crimes Act 1961, provides for the determination ofdisputes about the admissibility of evidence pre-trial. Toogood J's decision that the18 R v Davis [1982] 1 NZLR 584 (CA) at 589.interview would be admissible at Mr Winders' trial was made under this section.Section 101(6) provides that no order made under that section affects the discretion ofthe Court at the trial to allow or exclude any evidence in accordance with any rule oflaw.[45] Despite the breadth of the provision, it has long been accepted that pre-trialrulings should not generally be revisited unless fresh evidence has become availableor there has been a development in the law. This was confirmed by Casey J in givingthe judgment of this Court in R v Gallagher:19We would add that this decision on the applicability of s 344A in a retrialsituation is not to be seen as an open sesame for taking such a step as a matterof course. The right of appeal given by s 379A is a clear indication that anyearlier ruling under s 344A is prima facie to be taken as resolving the question.In general, we see a new application being warranted only if the interests ofjustice require it in cases where fresh evidence has become available, or (as inNarayan) where there has been a later development in the law.[46] A decision made under s 101 of the Criminal Procedure Act as to theadmissibility of evidence in a jury trial for a category 3 or 4 offence may be appealedwith leave under s 217(2)(b). Section 221 provides that the first appeal court mustdetermine a first appeal by confirming the decision appealed against, varying it, orsetting it aside and making any other order it considers appropriate. There is nothingto indicate that a decision made by this Court pursuant to s 221 has any different statusto any other appellate decision. It is binding on the High Court and must be followedabsent some material change of circumstances from those upon which it is founded.[47] The court's jurisdiction in dealing with an appeal against conviction is set outin s 232. Relevantly, the court must allow the appeal where a miscarriage of justicehas occurred for any reason. Miscarriage of justice is defined to include any error thathas resulted in an unfair trial.20 The enquiry on such an appeal is focused on thequestion of miscarriage and requires consideration of the full context of the trial. It istherefore entirely open for an appellant to contend (as here in relation to the propensityevidence) that there was a material change at trial from that envisaged for the purposes19 R v Gallagher [1993] 1 NZLR 659 (CA) at 661. See also R v Hines [1997] 3 NZLR 529 (CA)at 536; R v Howse [2003] 3 NZLR 767 (CA) at [15] and M (CA 245/2015) v R [2015] NZCA 413at [15].20 Criminal Procedure Act 2011, s 232(4)(b).of a pre-trial ruling such that a miscarriage of justice has occurred despite thecorrectness of that ruling having been confirmed in a pre-trial appeal.[48] However, if there has been no relevant change in the evidence or the law, wedo not consider that an appellant can challenge before this Court on an appeal againstconviction the correctness of its earlier decision on the same issue. This Court'sdecision in R v Coombs illustrates the general principle.21 Mr Coombs appealedagainst his conviction on drug charges. This Court rejected his contention that thejury's verdict was unreasonable and unsupported by the evidence. However, hisappeal was allowed on another ground and a retrial ordered. After he was convictedat the retrial, Mr Coombs again appealed contending that the evidence was insufficientto support the verdict. There was no material difference in the evidence given at thetwo trials. This Court held that Mr Coombs could not relitigate the issue of thesufficiency of the evidence. Somers J, who gave the judgment of the Court, concludedthat this would be an abuse of process:22There is no material or significant difference in the two cases. It follows fromthat identity of case that Coombs cannot be allowed to litigate the issue ofsufficiency of evidence again — it would be an abuse of the process ...[49] This Court recently addressed in Campbell v R the question as to whether anappellant can relitigate on a conviction appeal the same issue determined by the Courtin an appeal against a pre-trial ruling on the admissibility of evidence.23 The facts inCampbell are on all fours with the present case. Mr Campbell appealed against apre-trial ruling that his statement to the police was admissible. The appeal wasdismissed pre-trial. Mr Campbell was convicted. He appealed against his convictionagain contending that his statement was wrongly admitted. The Court was thereforein the same position as here. In giving the judgment of this Court declining the appeal,Winkelmann J stated:[24] We do not consider that this is one of those cases where, in the contextof a conviction appeal, the Court should revisit a decision on the same issuemade pre-trial. Mr Campbell properly concedes that nothing that emerged attrial is material to the reconsideration he seeks. He is simply asking us to take21 R v Coombs [1985] 1 NZLR 318 (CA).22 At 320.23 Campbell v R [2015] NZCA 452.a different view of facts to that taken by the Court in the earlier decisionbecause he says the earlier Court was wrong.[25] Having said that, we have now heard full argument on the appealgrounds, and so propose to consider them, although only briefly because ofthe view we take. This should not be seen as an indication that the Court willadopt a similar approach in future. With the benefit of hindsight we considerwe should have heard argument on the preliminary issue of whether this Courtshould revisit its own decision in this case, before hearing full argument onthe relevant appeal grounds. It may well be that approach is adopted by theCourt in future in appropriate cases.[50] If we were to accept Mr Morgan's submissions on this issue, there would betwo decisions from this Court applying the same law to the same facts but producingirreconcilable outcomes — one concluding that the evidence is admissible and theother concluding it is not. A second trial would be necessitated simply because of theinability of this Court to provide a consistent answer on the admissibility of the samepiece of evidence. The High Court would then be left in the invidious position ofconducting the retrial faced with conflicting decisions from this Court, both notionallybinding, as to the admissibility of this evidence. The administration of justice wouldbe brought into disrepute if trials were conducted in accordance with pre-trialdeterminations of an appellate court and then, after the trial, the same appellate courtreversed its decision with the result that the parties and victims were required to endurea further trial. Public reliance on a credible and predictable system of justice wouldinevitably be damaged.[51] We do not overlook two Supreme Court decisions declining leave for leapfrogappeals on the basis that the Court of Appeal should consider the matter first, eventhough it had already determined a pre-trial appeal arising out of the issues sought tobe raised in the conviction appeal. We do not see these decisions as being contrary toour conclusion as to the proper course in the present case.[52] In the first of these, Ngan v R,24 the applicant was involved in a car accidentand airlifted to hospital. Police officers who attended the scene took possession ofvarious items of personal property for safekeeping. These included high denominationcurrency notes that were strewn around the crash site, a sunglasses case and a wallet.Believing it would contain money, the police opened the sunglasses case and found24 Ngan v R [2006] NZSC 41.methamphetamine. The wallet contained a newspaper clipping reporting judicialcomment on Mr Ngan's drug habit. The Crown conceded in the High Court that thesearch of the sunglasses case was unlawful. The defence conceded that the policewere entitled to examine the wallet. The High Court determined that the evidence ofthe finding of the methamphetamine was admissible. On appeal pre-trial,the Court of Appeal found it unnecessary to determine the lawfulness of the search ofthe sunglasses case because the presence of the cash coupled with the discovery of thenewspaper clipping would have supported an application for a search warrant unders 18 of the Misuse of Drugs Act 1975. The Court concluded that the discovery of themethamphetamine was therefore inevitable.[53] Following conviction, Mr Ngan sought leave to appeal directly tothe Supreme Court on the grounds that the searches of the sunglasses case and thewallet were unreasonable and a miscarriage of justice had occurred by reason of theadmission of that evidence. He contended that a leapfrog appeal was appropriatebecause any appeal to the Court of Appeal would merely replicate its pre-trialconclusion.[54] The Supreme Court rejected that argument noting that the reasonableness ofthe search of the wallet was conceded in the High Court and the Court of Appealdid not address the reasonableness of the search of the sunglasses case.25 Further,the Court of Appeal's attention was not drawn to relevant overseas jurisprudence,26and it had not considered whether a miscarriage of justice may have occurred.27For these reasons, the proposed appeal would not necessarily lead to a replication ofthe Court of Appeal's earlier judgment.28[55] The other potentially relevant leave decision is Peters v R.29 That case was notconcerned with an admissibility issue, rather whether severance should have beenordered. Again, the Supreme Court declined a leapfrog appeal because of theimportant distinction between a pre-trial decision declining severance and an appeal25 At [9].26 At [9].27 At [11].28 At [10].29 Peters v R [2006] NZSC 75.against conviction asserting a miscarriage of justice had occurred as a result of the twoaccused being tried together. The Court stated:30The Court of Appeal's ruling on the pre-trial appeal appears orthodox on thequestion of severance. But, more importantly, now that the trial has occurred,the question arising upon an appeal against conviction is whether there has infact been a miscarriage of justice because the two accused were tried together.That requires scrutiny of the trial record to see whether the alleged prejudiceto Mr Peters from his co-accused's statement was alleviated by the manner inwhich the trial proceeded, taking into account particularly the trial Judge'sdirections to the jury. It involves looking at the whole course of the trial,which obviously was not something which could be considered bythe Court of Appeal in giving its pre-trial ruling. The inquiry is thereforea distinctly different one from that previously undertaken bythe Court of Appeal, which will in no way be bound by its earlier rulingconcerning severance.[56] The present appeal as to the admissibility of the interview is clearlydistinguishable from the proposed appeals considered by the Supreme Court in Nganand Peters. Because there has been no relevant change in the evidence or the law, ifthis Court were now to entertain this aspect of Mr Winders' appeal it would simply bereplicating the exercise it has already undertaken. In our view that is neitherpermissible nor appropriate.[57] In summary, we are not persuaded that there is any proper basis for this Courtto depart from its earlier judgment because there has been no material change in theevidence nor any relevant development in the law since that judgment was delivered.It is not open to this Court to conclude that there has been a miscarriage of justicearising out of the admission of the interview into evidence having already determinedthat it was admissible. The issue having already been determined by this Court, anyfurther challenge can only be advanced in the Supreme Court. This ground of appealmust accordingly fail.Third ground 3 — jury issue[58] Early in the trial, two jurors raised a concern with the court crier about the waythe foreperson was performing her function. The third ground of appeal concerns theway Toogood J dealt with this issue. The complaint is that the Judge ought to have30 At [4].informed counsel about the concern and given them an opportunity to makesubmissions on how it should be addressed.[59] The Judge was assiduous in preparing written records of rulings and directionstogether with minutes and bench notes covering all material matters that arose indealing with the case. The record discloses that he prepared written records ofseven rulings and five jury directions as well as 29 minutes and three bench notes.However, the Judge did not consider it necessary to make any contemporaneous recordof this particular issue.[60] To assist this Court in dealing with this ground of appeal, Toogood J provideda report commissioned pursuant to r 17 of the Court of Appeal (Criminal) Rules 2001.It is convenient to set out the key parts of that report, the accuracy of which is notchallenged:[3] I remember this incident. I did not make a bench note because itseemed to me at that stage to be a relatively minor matter of jury dynamics ina high profile and difficult case and a personality issue, rather than an issuegoing to the fairness of Mr Winders's trial. It was not raised with me bycounsel in the courtroom (so there is no log note and no recorded exchangebetween counsel and me) but I think counsel saw me about it in my chambers.[4] I received information in my chambers from the court crier aboutconcerns that had been raised with him by two female jurors informally, notin writing, about the foreperson. My recollection is that he told me theyreferred to her bossy manner and concerns that she appeared reluctant to takeon board the views of others during informal discussions. As I recall it,the matter was brought to me around the middle of the second week ofthe trial. [8] Before instructing the court crier about a response to the two jurors,I considered whether I should discuss the informal approach with counsel.Because there was little substance to the issue as it had been brought to me,and because I did not consider it appropriate to indicate to counsel mid-trialthat two jurors were dissatisfied by the foreperson's handling of her role inthe jury room, I decided not to do so.[9] I considered whether I should speak to the jurors myself rather thanrely on [the court crier's] report. I decided that it would be improper for thetrial Judge to speak to two jurors in that manner and that, in any event, it wouldescalate the issue to a level which made a full inquiry necessary. Given thestage at which the issue was raised by the two jurors and the minor nature oftheir concerns, I concluded that it would not be appropriate, regarding a matterwhich I considered could most easily be dealt with by the jurors themselves,to make any comment to the foreperson or the jury as a whole which wouldhave the possible effect of damaging intra-jury relationships.[10] I asked [the court crier] to tell the two jurors, discretely and not inthe presence of any other juror, that:(a) he had passed on their comments to me;(b) I suggested they should raise their concerns directly with theforeperson in a non-confrontational manner, simplyreminding her of the instruction I had given the jury aboutkeeping an open mind throughout and about the decisionbeing a collective one; and(c) they should continue to monitor the foreperson's conduct. Ifthey continued to have concerns about the manner in whichshe was carrying out her role which they did not think theycould address with her directly, they should prepare a writtencommunication for me.[11] I heard nothing more about the issue in the course of the trial up toand including delivery of the verdict.[13] During the rest of the trial I made a point of observing the membersof the jury from time to time for any signs of inattention or distress, as is myusual practice. I did not see anything in the behaviour of the foreperson orany other juror to indicate that any juror was not paying attention tothe evidence, or that there was any tension among the jurors. On the contrary,and as I mentioned in my direction to the jury on 16 August 2017, I observedduring the view of the scene of Mr Taiaroa's death and related scenes the closeinterest taken by all jurors. The extent to which they engaged with each otherin what seemed to be animated conversation was evident to me.[14] I did not receive any report about how the two jurors responded to myadvice through the court crier but, since I heard nothing more, I assumed thatthe issue had been resolved to their satisfaction.[61] The record shows that the jury retired at 1.16 pm on Wednesday7 September 2016 after 22 days of hearing. Their verdict was delivered at 3.50 pmon Monday 12 September 2016.[62] Mr Morgan submits that a miscarriage of justice has occurred becausetrial counsel was not informed about the detail of what the two jurors had said tothe court crier and did not have an opportunity to make submissions to the Judge abouthow the matter should be handled. Counsel submits that Mr Winders had a right toknow what had occurred and a right to be heard on it. Mr Morgan relies on this Court'sdecision in R v N, although he acknowledges that this deals with jury communicationsafter they have retired to consider their verdict.31 He submits that the procedure setout in that case should have been followed here.[63] We consider that the present case is more comparable to the issue that arose inHunter v R, where a concern was raised during trial about the impartiality of a juror.32This Court found that there is no duty on the presiding judge to conduct an enquiry,for example by speaking to jurors or to the foreperson, and the presiding judge has abroad discretion as to how the issue should be dealt with depending onthe circumstances.33[64] We are satisfied that the Judge dealt with this matter appropriately and there isno risk that a miscarriage of justice has resulted from the way he handled it. There wasno reason to believe that any juror was incapable of performing, or continuing toperform their duty as a juror.34 There were simply no grounds upon whichthe foreperson, let alone the whole jury, could have been discharged, a possible coursesuggested in argument before us. It is clear from Toogood J's report of hisobservations of the jury members and from the time they took in considering theirverdict that they applied themselves conscientiously to the solemn task they hadundertaken to perform.[65] This ground of appeal also fails. The conviction appeal must accordinglybe dismissed, all other grounds of appeal referred to in the notice of appeal havingbeen abandoned.Sentence appealFirst ground — s 10431 R v N (CA373/04) (2005) 21 CRNZ 621 (CA).32 Hunter v R [2012] NZCA 147.33 At [13].34 Juries Act 1981, s 22(2)(a).[66] Section 104 of the Sentencing Act requires the court to make an order imposinga minimum period of imprisonment of at least 17 years in the circumstances specified,unless it is satisfied that it would be manifestly unjust to do so. The specifiedcircumstances include, in terms of s 104(1)(b), if the murder involved calculated orlengthy planning. Toogood J was satisfied that although Mr Winders' planning maynot have been lengthy, it was calculated. He summarised the reasons for thisconclusion in the following passages of his sentencing decision:35[5] The jury's verdict means that, at approximately 3.15 pm on Tuesday,19 March 2013, at Atiamuri, you were guilty of the cold-blooded andcalculated killing of Mr George Taiaroa, a virtual stranger, by shooting him inthe head at point-blank range with a .22 calibre rifle. It was an entirelyunprovoked attack on an unsuspecting man.[6] The facts leading to that conclusion which I find to be proved beyondreasonable doubt are these:(a) On 12 March 2013, you were a passenger in your father'sLandrover which was involved in a minor collision nearroadworks at Atiamuri. Mr Taiaroa was in position as theoperator of a Stop/Go sign at the roadworks. As a result ofMr Taiaroa having signalled late to your father that he shouldstop his vehicle to make way for oncoming traffic, your fatherwas required to stop and reverse his vehicle. The trailer it wastowing collided with the vehicle behind.(b) Your father was liable to meet the $989.58 repair costs of theother vehicle and was apprehensive that he might not beinsured for the loss. A note written by you after the accidentsatisfies me that you were concerned about your parentshaving to pay for the repairs. You considered Mr Taiaroa tobe responsible for the collision in the sense that, had he beendoing his job properly, your father would not have beenrequired to reverse his vehicle and the collision would nothave occurred.(c) When you collected your blue Jeep Cherokee from apanelbeater in Stratford on the morning of 19 March 2013,you went to your home in Ohura Road, Pohokura, where youcollected a .22 rifle and ammunition. You then drove adistance of over 200 kilometres from your home, passingthrough Taumarunui, to a bridge on Tram Road, Atiamuri,with the intention of encountering Mr Taiaroa.(e) Between the time you left Taumarunui at around 1.40 pm andthe time you encountered Mr Taiaroa that afternoon, you35 Sentencing decision, above n 1.removed the number plates from your vehicle for the purposeof reducing the risk that it might be identified by any witness.(f) At the Tram Road site, you stopped your vehicle near to whereMr Taiaroa was standing with his sign indicating you wererequired to stop. You beckoned Mr Taiaroa to your vehicleand then, without warning and at a distance of less than half ametre, shot Mr Taiaroa through the forehead, causing serioushead injuries from which he died a short time later.(g) Having fired the fatal shot, you then sped across the TramRoad Bridge and turned right onto Tirohanga Road fromwhere you drove at high speed through the Pureora Forest toa farm near Benneydale owned by a friend, Mr KieronO'Dwyer, who had engaged you to do some fencing work onthe farm that day.[24] Your actions were calculated. At some point after you leftTaumarunui, you removed the number plates from your vehicle to limitthe risk of detection. At one stage you drove very slowly behind a tractor toavoid identification. You had your loaded rifle close to hand and yousummoned Mr Taiaroa over to your vehicle in order to get a close shot thatwould inevitably kill him. I have no doubt also that you had planned yourescape route through the Pureora Forest to the O'Dwyer farm at Benneydale.[67] Mr Morgan accepts that the Judge was entitled to make these factual findingsand they are not challenged. The question is whether they justify the Judge'sconclusion that the murder involved calculated planning.[68] The issue as to whether a murder involved calculated planning is obviously amatter of fact and degree. The planning need not be competent or sophisticated butmust be present to a heightened degree.36 The facts of the present case have somesimilarities to those in R v Parrish.37 There, the appellant was seen to be cleaning andoperating the loading mechanism on his rifle in Kerikeri around lunchtime on the dayof the murder. He then drove to his wife's unit in Auckland, arriving around 6.25 pm.He entered the unit with the rifle and shot her at close range before driving to hisbrother's house in another part of Auckland where he confessed to the murder.This Court confirmed the trial Judge's assessment that these facts were sufficient toengage the "calculated planning" criterion under s 104.36 Desai v R [2012] NZCA 534 at [59].37 R v Parrish (2003) 21 CRNZ 571 (CA).[69] We are satisfied that Toogood J was correct to conclude that s 104 was engaged.The planning included Mr Winders determining where Mr Taiaroa would be workingthat day. After collecting his vehicle from the panel beater at 9.30 am, Mr Windersreturned home to collect his rifle before driving over 200 km from Stratford viaTaumarunui to Atiamuri to carry out the murder at approximately 3.15 pm. The meansof carrying out the murder at that location were carefully planned as was the intendedescape route and the various means by which Mr Winders would minimise the risk ofdetection.Second ground — breach of the New Zealand Bill of Rights Act[70] In R v Shaheed, this Court discussed the difficulties in providing any form ofredress that truly vindicates a serious breach of the New Zealand Bill of Rights Actleading to evidence being unfairly obtained other than by excluding that evidence.38A reduction in penalty may be appropriate in cases where there has been a breach ofthe Bill of Rights Act because of undue delay.39 However, the Supreme Court has sofar declined to make any general pronouncement on the appropriateness of a sentencereduction as a remedy for other breaches of the New Zealand Bill of Rights Act.40Nevertheless, the Crown accepts that a sentence reduction could be an appropriateremedy for other breaches of the New Zealand Bill of Rights Act so long as this is inaccordance with ordinary sentencing principles, consistent with the approach taken bythe Supreme Court of Canada in R v Nasogaluak.41 We proceed on that basis notingthat the Court is obliged under s 8(h) of the Sentencing Act to take into account anyparticular circumstances of the offender that mean that a sentence that would otherwisebe appropriate would, in the particular instance, be disproportionately severe.[71] Mr Morgan submits that the following factors ought to have been taken intoaccount in setting the minimum period of imprisonment. Mr Winders was arrested ona pretence as part of a planned police operation to take him into custody for the purposeof questioning him about Mr Taiaroa's death. He was physically assaulted during the38 R v Shaheed [2002] 2 NZLR 377 (CA) at [153]–[155].39 R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 at [18]; and Beckham v R [2015] NZSC 98,[2016] 1 NZLR 505.40 Beckham v R, above n 39, at [154].41 R v Nasogaluak 2010 SCC 6, [2010] 1 SCR 206 at [55].arrest and unlawfully searched. He was then arbitrarily detained for over an hourbefore the evidential interview commenced. Mr Morgan submits that these wereserious breaches of guaranteed fundamental rights and warranted an appropriatelytailored reduction in sentence, particularly given that there is no other useful remedy.[72] While accepting the force of Mr Morgan's submissions, the problem he facesis that the Court is obliged to give effect to the legislative policy behind s 104 ofthe Sentencing Act and may not depart from the minimum mandatory period ofimprisonment of 17 years unless its imposition would be manifestly unjust. This Courtmade clear in R v Williams that the 17-year minimum may only be departed from ifthe Court concludes that the case falls outside the scope of the legislative policy.42The Court emphasised that such a conclusion will only be available in exceptionalcases where the circumstances of the offence and the offending are such that the casefalls outside the band of culpability of a qualifying murder.43[73] We are satisfied that the high threshold dictated by the "manifestly unjust"requirement was not reached in all the circumstances of this case. Mr Winders' arrestand unlawful detention for a limited period undoubtedly involved serious breaches ofhis rights but there is no evidence that the consequences involved any serious injusticeto him. Nor is there any evidence that he suffered any physical injury or psychologicalharm. We agree with Toogood J that a minimum period of imprisonment of 17 yearswas required because of the operation of s 104 of the Sentencing Act.[74] The appeal against sentence must accordingly be dismissed.Result[75] The appeal against conviction is dismissed.[76] The appeal against sentence is dismissed.42 R v Williams [2005] 2 NZLR 506 (CA).43 At [67].Solicitors:Crown Law Office, Wellington for Respondent