GIBSON-PARK v R [2023] NZCA 615

Redacted VersionGIBSON-PARK v R [2023] NZCA 615 [4 December 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA240/2021[2023] NZCA 615BETWEEN REUBEN WAYNE HIRA GIBSON-PARKAppellantAND THE KINGRespondentHearing: 19 June 2023Court: Brown, Peters and Mander JCounsel: N P Chisnall KC and T Epati for AppellantZ R Johnston and M A Shaw for RespondentJudgment: 4 December 2023 at 10.30 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] In the early morning of 15 December 2019, Raymond Neilson was subjectedto a fatal beating in his own home. His house and body were subsequently set alight.The appellant, Reuben Gibson-Park, together with his co-defendant, Tihei Patuwai,were found guilty by a jury of Mr Neilson's murder. Mr Gibson-Park was alsoconvicted of arson. Both were sentenced to life imprisonment with a minimumnon-parole period of 17 years.11 R v Patuwai [2021] NZHC 675.[2] Mr Gibson-Park appeals his convictions on a range of grounds relating toalleged errors made by his trial counsel and by the trial Judge which it is arguedresulted in a miscarriage of justice.Background[3] On the evening of 14 December 2019, Messrs Gibson-Park and Patuwaiattended a work function in Tokomaru Bay. After the function, they drove around inconvoy together with other men looking for further activity and came uponMr Neilson, who was walking home. As they drove past him, Mr Neilson called outand struck the side of the car. Mr Gibson-Park, who was driving the car, did a U-turn,got out of the vehicle and confronted Mr Neilson, who ran off to his nearby home.[4] When Mr Neilson got to his house, he called out to Mr Gibson-Park and hisassociates. They became angry. A group comprising Messrs Gibson-Park andPatuwai, together with two younger men, Karaitiana Kenworthy and William Reedy,approached Mr Neilson's house. The remaining occupants of the vehicles drove awayin one car.[5] The Crown's case was that Messrs Gibson-Park and Patuwai administered asevere beating to Mr Neilson. This initially took place on the front deck ofMr Neilson's house and then continued inside. During the attack it was alleged bothmen punched and kicked Mr Neilson, and Mr Gibson-Park used a baseball bat.Messrs Kenworthy and Reedy witnessed the first part of this assault, when the primaryviolence occurred on the deck, before leaving the house. After the two younger menwithdrew, Messrs Gibson-Park and Patuwai recommenced the attack on Mr Neilson,including with the bat.Messrs Reedy and Kenworthy's accounts[6] Messrs Kenworthy and Reedy were both called by the Crown as witnesses insupport of its case. Mr Reedy described how Mr Neilson had initially been holding abaseball bat but, by the time the group were coming up the steps to the front deck, hehad put this down and was holding a knife. Mr Gibson-Park persuaded Mr Neilson toput the knife down. However, he then began punching Mr Neilson. Mr Patuwai joinedin and both men punched and kicked Mr Neilson. Mr Reedy gave evidence that afterMr Neilson had been thrown to the ground, Mr Gibson-Park got on top of him anddrove his elbow down into Mr Neilson's face a number of times, while Mr Patuwaistomped on his pelvis and thigh area. Both men at this time were asking Mr Neilsonwhere the drugs were kept.[7] Mr Reedy said that, on the instructions of the two older men, he andMr Kenworthy entered the house and searched for drugs. By the time he returned tothe deck, Mr Reedy observed that Mr Neilson was still conscious, although yellingwith pain. His evidence was that Mr Gibson-Park then used the butt end of the baseballbat twice to hit Mr Neilson in the chest. At this point, Messrs Reedy and Kenworthyleft the house. As they did so, Mr Reedy described hearing what he said was a batstriking something. Mr Reedy said he went and sat in the vehicle and turned the musicup loud to drown out the sound of Mr Neilson screaming, and was joined byMr Kenworthy. Mr Reedy described Mr Gibson-Park coming to the truck still holdingthe bat, grabbing his collar and ordering him to stay in the vehicle. However,Mr Patuwai then shouted from the house for he and Mr Kenworthy to leave. As theydrove away, Mr Reedy said he could hear the sound of screaming and the bat hittingsomething.[8] Mr Kenworthy's evidence was to similar effect. He admitted to having initiallyjoined in the assault on Mr Neilson on the deck, punching him in the face and kickinghim twice in the face and ribs. Mr Kenworthy described how Mr Neilson was thrownto the ground and that, while in that prone position, Messrs Gibson-Park and Patuwairepeatedly punched and kicked him. Mr Kenworthy said he was pulled away byMr Reedy, which prevented his further participation. He also mentioned howMr Gibson-Park pinned Mr Neilson to the ground and kneed him in the back whileMr Patuwai punched him. Mr Kenworthy confirmed he and Mr Reedy had gone insidethe house to search for drugs. When Mr Kenworthy came back out onto the deck, hedescribed how Mr Neilson was at that point still moving — kicking his legs around.He and Mr Reedy were told to "eff off" by Mr Gibson-Park, and they went to thevehicle.The neighbour's evidence[9] As to what happened after Messrs Reedy and Kenworthy left, there wasevidence from a neighbour of overhearing what she thought was the sound of a personbeing repeatedly hit and two people's voices. She gave evidence of hearing whatsounded like a person shouting for help before being taken inside the house and itgoing quiet. The neighbour's evidence was that some 40 minutes later a vehiclearrived at Mr Neilson's house and left soon afterwards. She then noticed a fire andcalled 111. A subsequent investigation confirmed it was the result of arson. It wasthe Crown's case that Mr Gibson-Park had returned later that night and lit the fire.The brother's evidence[10] Messrs Gibson-Park and Patuwai, at some stage, left Mr Neilson's house andwent to Mr Patuwai's brother's place to ask him for a ride home. Shannon Patuwai-Matete gave evidence of being woken by the two men. While driving them home thatnight, he heard his brother say they had "fucked up" Mr Neilson and Mr Gibson-Parktell his brother, "we need to go torch him, bro".Mr Patuwai's police interviews[11] Mr Patuwai was interviewed by police on two occasions a week later, on22 December 2019. He admitted going to Mr Neilson's house "to give him a hiding"but maintained Mr Neilson was still breathing at the time he left the house after theattack. He admitted to hitting Mr Neilson at least a dozen times, with four of theseblows being to the face. He described Mr Gibson-Park as having punched Mr Neilsonin the head and chest more than 20 — "might of" been more than 30 — times,including with a bat, all over his body and head, with significant force.[12] Mr Patuwai described Mr Neilson stumbling inside the house and Mr Gibson-Park using the baseball bat to strike him as he lay on the ground. He said Mr Neilsonwas struck about 40 times in this way with full force and that while watching thisMr Patuwai was "freaking out".[13] Mr Patuwai denied any knowledge regarding the fire, although he referred toMr Gibson-Park saying they needed to "go torch him, bro", in his brother's car.The trial[14] The Crown's case was that Messrs Gibson-Park and Patuwai had acted togetherin administering a fatal beating to Mr Neilson. Their murderous intent could beinferred from the sustained nature and level of force that had been used.Mr Gibson-Park faced the arson charge alone, with the Crown's case being that he hadreturned to Mr Neilson's house and set the fire in order to cover up the murder.[15] Mr Gibson-Park's defence was that Mr Patuwai had administered the majorityof the violence. He accepted he was guilty of manslaughter but denied having amurderous intent. He denied any knowledge of or involvement with the arson.Mr Gibson-Park had not made a statement to police and gave evidence at his trial.In doing so, he described how all four men were involved in the assault on Mr Neilsonon the deck. He admitted punching Mr Neilson several times and striking him in theface with his elbows in order to keep him from getting up. He also admitted havingbeen handed a bat by either Mr Reedy or Mr Kenworthy, which he used to strikeMr Neilson. However, he said he only did this three times and the blows were to thedeceased's legs, buttocks and rib area for the purpose of preventing him fromgetting up.[16] Mr Gibson-Park's evidence was that Mr Neilson had got up, at which point hepunched Mr Neilson again, causing him to stumble inside the house and fall tothe floor. He described Mr Patuwai slamming an air gun into Mr Neilson's faceseveral times and that, despite him initially being able to restrain Mr Patuwai, hisco-defendant had stomped on Mr Neilson's chest and head. He had then tackledMr Patuwai to get him to desist before both men left the address. In respect of thearson, Mr Gibson-Park denied being involved. He maintained he was at the beach inthe presence of his then girlfriend when the arson was committed.The appeal[17] Mr Gibson-Park brings his appeal on four grounds which it is submitted, eitherindividually or in combination, have given rise to a miscarriage of justice:(a) Errors by counsel are alleged to have occurred in respect of two mattersthat were said to have shaped the way Mr Gibson-Park's case was run,and attracted criticism from the trial Judge, Cooke J. These wereidentified as:(i) Mr Gibson-Park's trial counsel, Mr Ryan, having asserted adefence that relied on a flawed understanding of the law ofcausation; and(ii) counsel having impermissibly questioned a witness on the basisof Mr Patuwai's police interview due to a misunderstanding ofthe law regarding the cross-admissibility of the co-defendant'spolice statements.(b) Undue prejudice had been caused by Mr Patuwai's statements to policethat illegitimately inculpated Mr Gibson-Park and could not be curedby judicial direction.(c) The trial Judge erred by only providing a generic lies direction thatapplied to "witnesses" and failed to give a tailored reliability warningin relation to two key Crown witnesses, Messrs Kenworthy and Reedy.2(d) Trial counsel's failure to file an alibi notice in respect of the arsoncharge resulted in the Crown erroneously being permitted to callhearsay evidence in rebuttal that unfairly prejudiced Mr Gibson-Park.2 Evidence Act 2006, s 122(2)(c).Errors by trial counsel[18] Mr Gibson-Park relies upon two aspects of trial counsel's conduct of hisdefence that are alleged to have given rise to a real risk that the trial's outcome wasaffected, and caused his trial to miscarry.3Supposed "causation defence"[19] Trial counsel is criticised for a line of questioning he engaged in with Dr White,the forensic pathologist who conducted the post-mortem examination of Mr Neilson,regarding the cause of Mr Neilson's death. Trial counsel is also criticised for asubmission, made in his closing address, that Mr Gibson-Park was not guilty of murderbecause he was not responsible for the neck injuries identified by the pathologist as apotential cause of Mr Neilson's death.[20] Dr White's evidence was that Mr Neilson's death was caused by blunt forcetrauma to the face and head in combination with compression injuries to the neckwhich restricted his airways. Dr White was unable to determine whether the headinjuries or the injuries relating to neck compression had of themselves been themechanism by which death had been caused. The evidence was that each set ofinjuries constituted a major operative cause of death and that it was impossible todefinitively identify which had been the more severe.[21] In his closing address, Mr Ryan made the following submission:Importantly Dr White confirmed that Mr Neilson might well have, in theabsence of the neck compression, survived the other injuries, but that wasdependent on appropriate aid being given. Mr Gibson-Park was notresponsible for causing the neck injuries to Mr Neilson. He accepts hepunched him; he accepts he kicked him around the body; he accepts he hit himwith a baseball bat. None of those injuries were likely to cause Mr Neilson'sdeath.The defendant, he gave evidence that he punched and kicked Mr Neilson.You heard him yesterday afternoon and this morning. He confirmed he struckMr Neilson with the baseball bat. He confirmed in evidence, on oath, beforeyou that he did not know that the injuries he caused Mr Neilson [were] likelyto cause death. Importantly, he gave evidence that when he was in thebedroom of the address, this is after the two other guys had left. He came out3 Criminal Procedure Act 2011, s 232(2)(c) and (4)(a); and R v Sungsuwan [2005] NZSC 57, [2006]1 NZLR 73 at [70].and saw Mr Patuwai stomping on Mr Neilson's chest and neck. I say to youthat's when the neck compression occurred. I say to you but for the neckcompression occurring Mr Nielson wouldn't have died.[22] As a result of other criticisms of trial counsel's conduct of Mr Gibson-Park'sdefence, a waiver of privilege was obtained and an affidavit filed by Mr Ryan inresponse to those matters. He deposed, in relation to an issue concerningMr Gibson-Park giving evidence:Mr Gibson-Park's defence was that he should be found guilty of manslaughterbut not murder. One of the strands of his defence was a line of authority thatstated where there are two operating causes of death the jury must beunanimous on what cause resulted in the death of a person and if the jury werenot unanimous on this then the appropriate verdict was one of manslaughter.[23] As a result of the statement contained in trial counsel's affidavit, an additionalground was advanced that had not previously been identified in the original groundsof appeal. Based on what Mr Ryan had stated, it was submitted he had misunderstoodthe law relating to causation and embarked on a defence that was not available toMr Gibson-Park, nor one that was sustainable on the state of the pathologist'sevidence, who had not accepted the proposition that the neck injuries were the onlysubstantial cause of death. Dr White said that she could not rule out either thecompression injuries to the neck or the more general blunt force trauma to the face andhead as a singular operative cause, and said that they had likely acted in combination.[24] It was submitted this error explained why trial counsel had advisedMr Gibson-Park to give evidence and why, when giving his testimony, Mr Gibson-Park stated, "the injuries that I caused him didn't lead to his death". It was argued thisconcession of having caused some of the injuries was able to be exploited by theCrown by emphasising that Mr Gibson-Park had participated in the joint assault andcaused some of the injuries. It was suggested this was the product of counsel's errorin believing the assaults to which Mr Gibson-Park had admitted could be divisiblefrom those inflicted by others.[25] It was also argued that counsel's approach placed an obligation on thetrial Judge to provide the following direction, which reflected poorly on Mr Gibson-Park's defence:[33] there has been some reference to whether you can be sure howMr Neilson died given Dr White's evidence about the cause of his death.The prosecution alleges that there were a number of injuries sustained byMr Neilson as a consequence of the punches, blows or kicks administered byMr Gibson-Park and Mr Patuwai. You do not need to be sure that anyparticular injury was the one that finally resulted in Mr Neilson's death if youare all sure that the injuries that killed him were sustained as part of the oneattack. Analysis[26] Trial counsel's apparent belief was that this was a case giving rise to differentpossible scenarios that required the jury to be unanimous as to which of the alternativedistinct acts were causative of death. We accept that this was misplaced. This caseinvolved an ongoing assault that comprised many different blows. As a matter of law,it was not necessary for the Crown to isolate the defendants' particular acts during thecourse of the beating that were fatal for the purposes of assessing Mr Gibson-Park'sstate of mind.4[27] However, as noted by Mr Ryan in his affidavit, this was but "[o]ne of thestrands" of Mr Gibson-Park's defence. Moreover, whatever its legal worth as adefence, it was a stance that was consistent with his primary defence of a lack ofmurderous intent. One of the ways that was sought to be demonstrated wasMr Gibson-Park's less violent involvement, that was limited to administering blowsthat could not have been foreseen as capable of causing death in the same way assaultsthat resulted in the neck compression injuries may have been considered by the juryas being capable of being fatal.[28] Much of Mr Gibson-Park's evidence related to how he did not wish to causeMr Neilson injury or to really hurt him, and he sought to emphasise this undercross-examination when challenged about his reasons for striking Mr Neilson.This was also a focus of the defence in closing, when it was submitted that Mr Gibson-Park could not have known, as a layperson, that the type of injuries he inflicted wouldlikely cause death. Mr Ryan argued:4 R v Peters [2007] NZCA 180 at [44]; Hohua v R [2019] NZCA 533 at [24]–[26]; and R v McKeown[1984] 1 NZLR 630 (CA) at 632–633. Compare R v Chignell [1991] 2 NZLR 257(CA) at 265-266; and R v Ramsay [1967] NZLR 1005 (CA) at 1014.You can't be sure, on the evidence that you have heard, that Mr Gibson-Parkknew that the body injuries that he inflicted on Mr Neilson, at the time he wasinflicting them, were likely to cause Mr Neilson's death. And I say to younow, that if you can't be sure then Mr Gibson-Park is not guilty on the murdercharge. He is guilty of manslaughter. I'm not trying to beat around the bush,he's guilty of actions that contributed at some stage, to Mr Neilson's death.But, his actions were not causative of Neilson's death.[29] Mr Ryan had put Mr Gibson-Park's defence in the following way whenopening his case:Now in this charge notice you will see that charge one is an allegation ofmurder. He pleaded not guilty to that charge, you heard him do that. Now inrelation to that charge he accepts he was present at Mr Neilson's address.He accepts he assaulted Mr Neilson but he denies that he had at any stage [an]intention to kill or that he meant to cause Mr Neilson's death. He also deniesthe assertion from the Crown that he meant to cause Mr Neilson any bodilyinjury that was likely to cause Mr Neilson's death. Furthermore he did nothave, as my friend from the Crown said, reckless intent.In relation to the charge of murder his defence is that he did not mean or intendto cause the death of Mr Neilson. You might see that there is another littlenumber under 167 in the charge notice so the alternative or second defence isthat the defendant did not cause Mr Neilson any bodily injury that thedefendant Mr Gibson-Park knew was likely to cause the death of Mr Neilsonand he wasn't reckless.[30] The thrust of Mr Gibson-Park's defence related to his state of mind and hislack of intention to inflict the type of bodily injuries that could foreseeably resultin death. At no stage was a causation defence articulated on the basis the sequence ofassaults were divisible, or that he had not been a party to a separate attack or a differentevent that had been causative of Mr Neilson's death. Both in trial counsel's openingand in the passage of his closing, set out at [21] above, the submission was made thatMr Gibson-Park did not have a reckless murderous intent.[31] In support of that argument, attention was drawn to the blows thatMr Gibson-Park was actually responsible for inflicting, from which it would not, itwas suggested, be reasonable to infer knowledge that the likely consequences wouldbe fatal, or of the possibility of death. By this means, Mr Gibson-Park attempted todistance himself from Mr Patuwai's actions that, it was submitted, had resulted insevere injuries to Mr Neilson, in an endeavour to advance his argument of a lack ofmurderous intent. This approach was a part of, or at least consistent with, a widerstrategy relating to Mr Gibson-Park's professed motives for the assaults he admittedto having committed. These included holding Mr Neilson down because of a concernhe would try and attack them, and that he only struck Mr Neilson with the baseball batin certain discrete parts of the body for the purpose of making him "stay down". Hedid not hit him in the head with the bat because, he said, "I didn't wanna hurt him, Iwas just like, I just like just stay down, yeah".[32] We do not consider that any mistake by trial counsel regarding a possiblecausation defence resulted in Mr Gibson-Park giving evidence when he shouldnot have. Mr Patuwai's defence was effectively to cast Mr Gibson-Park as the mainprotagonist. Mr Gibson-Park had declined to be interviewed by the police.Messrs Kenworthy and Reedy had been called as eyewitnesses, at least toMr Gibson-Park's initial participation and his use of the baseball bat. In the face ofthat and other evidence, we consider Mr Gibson-Park's decision to give evidence toadvance his defence that he lacked any murderous intent was entirely justifiable andcannot be attributed to any error on the part of counsel regarding a potential causationargument.[33] Mr Gibson-Park was able to explain his level of involvement and provideevidence of Mr Patuwai using a blunt instrument (possibly an air gun) on Mr Neilson,and of Mr Patuwai having stomped on Mr Neilson's chest and head. That enabled trialcounsel in his closing to contrast the level of violence meted out by Mr Patuwai andthat used by Mr Gibson-Park, who, on his account, had stepped in to preventMr Patuwai from inflicting more injuries. On the basis of his testimony,Mr Gibson-Park was able to submit that Mr Patuwai had by that stage embarked onan enterprise of his own beyond that anticipated by Mr Gibson-Park. This was alegitimate line of argument in support of Mr Gibson-Park's defence that sought todistance him from the level of force used by Mr Patuwai, and his inability to haveforeseen that the assault could result in Mr Neilson's death.[34] In the circumstances, Mr Gibson-Park had little option but to give evidencegiven the nature of the cut-throat defences both defendants were advancing to blamethe other for the worst violence that was used. In that regard, Mr Patuwai had theadvantage of his account being before the Court by way of the police interviews, inwhich he sought to minimise his actions. We note that Mr Gibson-Park has not offeredany evidence on appeal regarding his reason for electing to give evidence, orarticulated any complaint as to how or why his decision would have been different.[35] We also do not consider the trial Judge's direction prejudiced Mr Gibson-Park.Having regard to the respective defences being run by each defendant, that effectivelysought to blame the other as the person responsible for inflicting the type of violencethat could foreseeably have had fatal consequences, we consider such a direction wasalways necessary, if not essential, given the factual matrix and the need for the Crownto prove causation as an element of murder. It was important in the circumstances ofthis trial, notwithstanding any defence sought to be run by an individual defendant, forthe jury to be informed it was not necessary for the Crown to identify the fatal blowor for the jury to be sure that any particular injury had caused Mr Neilson's death, solong as the injury/injuries that killed him occurred as part of the attack.Decision[36] We are satisfied that Mr Gibson-Park's defence that he did not have amurderous intent at the time he participated in the assault on Mr Neilson was fullyadvanced. To the extent his trial counsel may have been labouring under themisapprehension that a causation defence was available to him, it is not apparent fromthe trial record that this was pursued to any great extent, nor, moreover, that it in anyway detracted from his defence of not having a murderous intent, or prejudicedMr Gibson-Park. To the extent it was explored, we consider it largely complementedhis defence that he lacked the requisite state of mind.[37] The cross-examination of Dr White by trial counsel may have beenineffective but it was consistent with minimising Mr Gibson-Park's responsibility forMr Neilson's injuries. We do not discern any drawback to him from what Mr Ryansought to achieve in canvassing these matters with Dr White. We accept the Crown'ssubmission that it would have been potentially advantageous to Mr Gibson-Park's caseto advance a narrative that the most serious injuries suffered by Mr Neilson were theones that Mr Gibson-Park denied being responsible for and which he claimed had beencaused by Mr Patuwai, notwithstanding Dr White's inability to identify which of theseveral types of injuries sustained by Mr Neilson had resulted in his death.[38] We reject the submission that counsel's misapprehension as to an availabledefence resulted in little focus being centred on the ingredients of party liability andproof of murderous intent in the context of the group assault, as was submitted onbehalf of Mr Gibson-Park. We do not consider there was much, if any, scope to suggestMr Gibson-Park's actions were not capable of constituting acts of aiding andencouraging,5 having regard to the evidence of Messrs Reedy and Kenworthy thatdescribed Mr Gibson-Park's participation in the assault. The focus understandablywas to limit the inferences that could be drawn from Mr Gibson-Park's actions as towhether he had a reckless murderous intent. Efforts to limit Mr Gibson-Park'sparticipation to less violent acts that did not result in particularly serious injuries andcould not foreseeably result in death served that purpose.[39] Mr Patuwai, in speaking with the police, essentially admitted being a party tothe assault that had resulted in Mr Neilson's death and therefore to his manslaughter.Similarly, the account Mr Gibson-Park provided to his trial counsel amounted to anacceptance to having at least been a party to manslaughter insofar as he too hadparticipated in the physical attack. Neither man's defence to murder turned on whetherthey had participated in the assault and aided and encouraged the other. Whether theycould be found to be parties to murder turned entirely on whether they held therequisite murderous intent at the time of that participation.[40] We do not consider there was any realistic basis upon which to contest partyliability, other than on the question of Mr Gibson-Park's state of mind at the time.This was the focus of his defence, which we consider was fully advanced to the jury.To the extent an alternative causation defence was persevered with by Mr Ryan, insuggesting to the jury the injuries inflicted by Mr Gibson-Park were not causative ofMr Neilson's death, we do not consider the Judge's direction about causation wouldhave been interpreted as critical of Mr Gibson-Park. We therefore do not considerthere was any risk that the approach taken by trial counsel in exploring a possible5 Crimes Act 1961, s 66(1)(b)–(c).causation defence at trial, misconceived as it may have been, affected the outcome ofthe trial or rendered the verdicts unsafe.Use of Mr Patuwai's police statements[41] The second alleged error by trial counsel concerns an attempt made during thecross-examination of Mr Reedy to use statements that Mr Patuwai made to police toimpeach that witness's account of his involvement in the assault. It is common groundthat, other than as statements against interest admissible against Mr Patuwai, thestatements were inadmissible hearsay. In the absence of any hearsay application, theevidence could not be used in the manner sought by trial counsel.[42] Trial counsel's questioning was objected to by the Crown and, after adiscussion in chambers, that line of cross-examination was not pursued. The Judgementioned the matter in summing up:[77] I should also tell you that during the course of Mr Ryan's cross-examination of Mr Reedy Mr Ryan made reference to Mr Patuwai's interview,and in fact asked you to note down a particular reference. That was a mistake.That interview is not relevant to the case against Mr Gibson-Park at all. So Iask you to ignore those questions and answers Mr Ryan put aboutMr Patuwai's interview.[43] We do not consider this attempted use of Mr Patuwai's statements in any waydetracted from the Judge's clear directions regarding the status of Mr Patuwai'sstatements and that they were not admissible against Mr Gibson-Park. We considerthis supplementary direction was likely designed to buttress the Judge's earlierstatements to the jury to that effect. However, that is not the nub of Mr Gibson-Park'sargument in relation to trial counsel's error. It is submitted on his behalf that thetrial Judge's direction had the unintended consequence of telling the jury to disregardan important strand in Mr Gibson-Park's case, being that Mr Reedy had downplayedhis own involvement in the attack and exaggerated Mr Gibson-Park's actions.[44] We do not consider the trial Judge's directions had such an effect. The Judge'sstatement was expressly limited to the questions and answers that had been put aboutMr Patuwai's interview. This went no further than clarifying any confusion that mayhave arisen regarding the status of Mr Patuwai's statements and their inadmissibilityagainst Mr Gibson-Park. We do not consider it detracted from Mr Gibson-Park's casethat Mr Reedy had minimised the extent to which he had been involved in the attackon Mr Neilson.[45] It was put to Mr Reedy during his cross-examination that he had been involvedin the assault and had kicked and hit Mr Neilson. The defence theory that Mr Reedywas an unreliable witness who was attempting to minimise his involvement wassquarely put to the jury by trial counsel during the course of his closing. This argumentwas repeated by the trial Judge to the jury when he referred to this aspect of the defencecase in his summing up:[124] [Mr Ryan] indicated where those witnesses had given evidence thatwas consistent with Mr Gibson-Park's evidence, but also where the evidencecould be seen to be influenced by a desire to protect their position, or thosewith whom they were associated. [125] In terms of the evidence from Mr William Reedy and Mr [Karaitiana]Kenworthy they had eight days until they made their statements to the police.Some of the evidence did not stack up [Mr Ryan] said. For example ifMr Reedy was not involved in the assault as he said, what was he doingpicking up the baseball bat, and why was the baseball bat given to Mr Gibson-Park. That is not consistent with the evidence that Mr Reedy just wanted toget out of the house he said. He has not been charged with anything. [46] Trial counsel erred when questioning Mr Reedy about the content ofMr Patuwai's statements but we do not consider there is any risk of a miscarriage ofjustice having resulted from that occurrence or that it contributed to such an outcome.Mistakes regarding the use to which various items of evidence can be put are notuncommon during the course of a trial and we are unable to perceive how either thismistake or the Judge's direction, which was designed to avoid any confusion regardingthe use that could be made of Mr Patuwai's statements and was ultimately toMr Gibson-Park's benefit, could have prejudiced Mr Gibson-Park.Alleged prejudice caused by Mr Patuwai's statements[47] It is alleged on behalf of Mr Gibson-Park that a miscarriage of justice arosebecause of the undue prejudice caused by the evidence of Mr Patuwai's policeinterviews. It was argued that judicial directions were insufficient to cure the unfairprejudice generated by Mr Patuwai's two statements, which strongly implicatedMr Gibson-Park. Because of the length and content of Mr Patuwai's statements, thenature of the Crown case that involved an allegation this had been a joint attack,comments made by the interviewing officer, and the fact trial counsel had introducedMr Patuwai's statements in the course of the cross-examination of Mr Reedy(as previously discussed), it was argued this was one of those exceptional cases wherethe charges against each of the co-defendants should have been severed. It wassubmitted the failure to do so had resulted in a miscarriage of justice.[48] We do not consider the Crown's case that the two defendants acted together inthe attack on Mr Neilson, or that their assault could be described as having been a jointenterprise,6 gives rise to any particular difficulties regarding the status or treatment ofMr Patuwai's statements to the police. Where defendants have been charged jointlyon the basis each has been a party to the other's actions, it is a not infrequentoccurrence that one or more of them has spoken to the police and implicated theirco-defendant. In such a situation it will normally still be in the interests of justice forthere to be a joint trial, the defendants having been accused of joint offending. This hasthe benefit of avoiding the risk of inconsistent verdicts and duplicating the sameevidence in multiple trials.7[49] Concerns regarding improper reasoning by a jury on the basis of inadmissibleevidence against a co-defendant can ordinarily be mitigated by the use of appropriatedirections.8 However, a residual risk may remain in some cases because of theparticular circumstances of the individual case. This was acknowledged by this Courtin R v Fenton:9There may, however, be occasions when the weight of the inadmissibleevidence, against that of the admissible, makes it unfair to an accused,notwithstanding the trial Judge's directions, to expect the jury to act only onthe evidence which is admissible. Similarly, there may be cases in which thedifficulties in isolating the admissible from the inadmissible make it unfair toexpect the jury to undertake that exercise. Those are the usual circumstancesin which severance may be justified. Ultimately the question is whether theapplicant for severance can demonstrate some feature of the case whichclearly outweighs the ordinary approach and the basis upon which it rests, andwhich therefore mandates severance in the overall interests of justice.6 Crimes Act, s 66(2).7 RW (CA660/2011) v R [2011] NZCA 556 at [11], citing Shadrock v R [2011] NZCA 388,[2011] 3 NZLR 573; Williams v R [2011] NZCA 245 at [10], citing R v Fenton CA223/00,14 September 2000 at [25]; and Jones v R [2015] NZCA 312 at [17].8 R v Fenton, above n 7, at [25].9 At [26].[50] No application for severance was made in this case. We consider that wasunsurprising in the circumstances. Messrs Gibson-Park and Patuwai were chargedwith having jointly engaged in a combined attack on Mr Neilson that resulted inhis death. The Crown's case was that each, both as a principal and as a party to theother's actions, were full participants in what was an ongoing assault on Mr Neilson.The only part of the evidence that was inadmissible against Mr Gibson-Park wasMr Patuwai's statement, which was a readily identifiable part of the Crown case easilyring-fenced as only being admissible against Mr Patuwai. Immediately prior to thisevidence being given, the trial Judge directed the jury in the following way:As you have heard, you are about to be played a recording of the interviewMr Patuwai gave to police. I will be giving you instructions about how youshould consider this in my summing up to you later in the trial. But there isone thing I want to emphasise to you now before you hear it.Mr Patuwai's interview is evidence in Mr Patuwai's trial, but it is not evidencein Mr Gibson-Park's trial. As has been said we are really doing two trials atonce, and if we were doing Mr Gibson-Park's trial separately this interviewwouldn't be played to you at all. You must treat it in the same way. So ifMr Patuwai says things that Mr Gibson-Park did, or didn't do, it is irrelevantto Mr Gibson-Park's trial. You must look to the other evidence of whatMr Gibson-Park did, or didn't do for his trial.[51] The Judge repeated this direction in his summing up:[76] the video interview is Mr Patuwai's statement and it is relevantonly to his trial. Nothing he said in that interview is to be considered inrelation to Mr Gibson-Park. When you assess the case against Mr Gibson-Park you must ignore anything that Mr Patuwai said at this interview. It wouldbe most unfair and wrong of you to take that into account in relation toMr Gibson-Park. [52] In addition to those specific directions, the jury were also reminded by thetrial Judge that while there was a single charge of murder that both Mr Gibson-Parkand Mr Patuwai faced, it was "really two separate charges". The Judge stated that"[i]n fact you are dealing with two separate trials, Mr Gibson-Park's trial andMr Patuwai's trial". No issue has been taken with the content of the Judge's directions.However, it was argued they were insufficient to ensure the jury divorced theirconsideration of the content of Mr Patuwai's out-of-court statements from theadmissible evidence relating to Mr Gibson-Park. A number of factors were putforward in support of the submission that this was an "unusual" case where eachdefendant should have been tried separately. We review each of these argumentsin turn.[53] We have already rejected the submission that any difficulty or complicationarose from the Crown's case that the two defendants had acted together in the attackon Mr Neilson. While we accept Mr Patuwai's statements were of some duration,being over three hours long in total, as already noted, it was a type of evidence thatwas readily distinguishable as being admissible only against Mr Patuwai. In terms ofits content, it was submitted there were elements highly prejudicial to Mr Gibson-Park,particularly Mr Patuwai's description of what Mr Gibson-Park did, most notably afterMessrs Reedy and Kenworthy had left the house. However, insofar as it is relevant,given the trial Judge's directions to the jury to put Mr Patuwai's statements to one side,his motivation for providing an account that embellished Mr Gibson-Park's role andminimised his own conduct would have been readily apparent to the jury.[54] A particular concern raised related to questions by the interviewing officer thatwere focussed on Mr Patuwai's narrative of Mr Gibson-Park's assaults. It wassubmitted that that those questions were designed to extract an admission aboutmurderous intent, the implication being this was particularly prejudicial toMr Gibson-Park. However, we consider that enquiry had an obvious direct relevanceto Mr Patuwai's participation. His admissions as to his understanding of theconsequences of the beating he described were inculpatory of his state of mind atthe time. Concerns were expressed regarding mention of the use of a tomahawk, butthese portions were excised and not shown to the jury.[55] A further criticism of the interview related to the use of Mr Patuwai's brother'sstatement, which included Mr Gibson-Park's utterance in Mr Patuwai's presence that"we need to go torch him, bro". Because this statement by Mr Gibson-Park was saidin Mr Patuwai's presence, it was also admissible against Mr Patuwai. We do notconsider the interviewing detective's approach was impermissible, nor do we considerthis resulted in any real prejudice to Mr Gibson-Park because this evidence was givendirectly by the brother at trial. We do not consider its repetition during the interviewof Mr Patuwai supports severance.[56] The unambiguous directions by the trial Judge that this evidence wasinadmissible against Mr Gibson-Park in large part renders these various criticisms ofthe police interviews, at least insofar as Mr Gibson-Park is concerned, redundant.Insofar as they have been identified as aspects of Mr Patuwai's statements that wereparticularly prejudicial to Mr Gibson-Park, we do not consider they are of a nature thatwould justify separate trials or risked rendering Mr Gibson-Park's trial unfair. There isnothing to indicate the jury would have done other than as directed and put this partof the evidence to one side.[57] Considerable reliance was sought to be placed on this Court's decision inWilliams v R,10 where an appeal against conviction was allowed because of the realrisk the jury may have improperly relied upon a very substantial body of inadmissibleevidence contained in the co-defendant's statement. In that instance, the Crown casehad been severely weakened by the end of the trial because of the unreliability of twokey Crown witnesses. The co-defendant's statement to the police placed the appellantat the scene of the murder and attributed responsibility to him for the killing.The prejudicial effect of this statement was required to be assessed in the context of aweak circumstantial Crown case.11[58] We do not consider the analogy sought to be drawn with the present case isavailable. Here, the Crown was able to rely upon the evidence of two eyewitnessesand other evidence, including of a forensic nature, that supported Mr Gibson-Park'shaving, together with Mr Patuwai, taken a leading role in the attack on Mr Neilson.This was not a case where the weight of the inadmissible evidence, as compared withthe admissible evidence, meant it would be unfair or unrealistic to expect the jury tobe able to put the former to one side. The balance of the evidence againstMr Gibson-Park was considerable and, as earlier observed, the inadmissible materialwas well able to be isolated.[59] One particular feature of the Williams case upon which some reliance wasplaced in an attempt to draw a parallel with Mr Gibson-Park's trial was theimpermissible way in which Mr Patuwai's police interview was referred to in the10 Williams v R, above n 7.11 At [44].course of the cross-examination of Mr Reedy. We have discussed the circumstancesof this incident at the trial in relation to the earlier ground of appeal, but it is also reliedupon as being analogous to what occurred in Williams, where counsel for one of thedefendants made use of another's police statement. This Court was concerned withthe way that had been allowed to happen and the way the jury had been directedregarding the use that could be made of the statement, which had likely led toconfusion. This Court stated:12[47] Secondly, we need to factor in the possible impact of the approachtaken by K's counsel to the use of Mr Tumata's statement. We do not need todecide whether or not that was the correct approach but it did come into thepicture late in the piece. Its use meant that the jury were effectively told todisregard the statement in relation to assessing one of Mr Tumata's co-accusedbut that they could attach what weight they considered appropriate to thestatement in relation to the other co-accused, K. This is another feature whichmarks this case out from Fenton, which was in this respect a much lesscomplicated case. We consider there was a risk in this case that the jury mayhave had difficulties in isolating the admissible from the inadmissible. [60] We are satisfied nothing comparable to the risk that was identified in that casearises from the erroneous use of Mr Patuwai's statement to cross-examine Mr Reedy.In the present case, the Judge's actions and directions ruled out any possible confusion.Firstly, the objectionable line of questioning was stopped and a ruling made thatprevented it from continuing. Secondly, the Judge could not have been clearer as tohow Mr Patuwai's statement was not to be used against Mr Gibson-Park. Unlike inWilliams, we see no scope for confusion on the jury's part.[61] We are satisfied that no miscarriage of justice arose from the two defendantsbeing tried together for their joint attack on Mr Neilson, nor that there were anycircumstances arising in relation to Mr Patuwai's statements to the police that createda need for them to be tried separately. The evidence against each defendant wassubstantially the same. The only evidence that was inadmissible againstMr Gibson-Park was readily identifiable and there is no basis to consider the Judge'sdirections regarding its use did not sufficiently mitigate any potential prejudice arisingfrom its inadmissibility in respect of him.12 Williams v R, above n 7.The Judge's directions regarding lies and reliability[62] Mr Gibson-Park alleges a miscarriage of justice arose as a result of the waythe Judge provided a "generic lies direction" which did not cover the mandatoryrequirements set out in s 124(3) of the Evidence Act 2006, and failed to provide adirection regarding the two key Crown witnesses, Messrs Reedy and Kenworthy,having an incentive to lie.13Lies[63] It was argued by the Crown in its closing address that Mr Gibson-Park had toldlies in the course of his evidence. As a result, it was argued by Mr Gibson-Park on hisappeal that the Judge's general direction regarding purported lies was, in thecircumstances, insufficient. The direction the trial Judge gave was as follows:Lies and Unreliability[68] Avoid jumping to the conclusion that because a witness has givenuntruthful evidence on one topic, their other evidence should be treated asunreliable. Although it is a strong reason for subjecting the later evidence tocritical scrutiny, it can be possible that a witness has a reason to be evasive onone topic but be reliable on another.[69] The possibility of honest mistake in recollection should be excludedbefore proceeding to make an adverse finding on credibility.[70] These are entirely matters for you to weigh up. In doing so, you willexercise your collective common sense and wisdom.[64] Two complaints were made in regard to the Judge's approach. The first wasthat the direction undermined an essential plank of the defence case relating to theunreliability of Messrs Reedy and Kenworthy, who it was alleged were motivated todownplay their own criminal involvement in the attack on Mr Neilson. Secondly, itwas submitted the direction did not squarely address Mr Gibson-Park's alleged lies.It was argued the direction was inadequate because it failed to caution the jury not totreat a proved lie as a shortcut to a finding of guilt.14 It was argued that a full liesdirection should have been provided which exclusively focussed on Mr Gibson-Park's13 Evidence Act, s 122(2)(c).14 Section 124(3)(c).purported falsehoods and that, in the absence of having done so, there was a real riskthe jury would equate lies with guilt.[65] We do not consider any miscarriage of justice arises from the trial Judgeproviding the direction he did or in not providing an orthodox lies directionspecifically relating to Mr Gibson-Park. While the direction the subject of scrutinywas provided under the heading "Lies and Unreliability", it formed the concludingremarks by the trial Judge regarding the way a jury should approach their assessmentof the reliability and credibility of witnesses that is a staple of any summing up.After directing the jury that it was for them to decide what witnesses and whatevidence they regarded as being credible and reliable, including that they may thinkparts of what a witness has said is credible and reliable but have doubts about otherparts, the Judge canvassed other factors that may influence the jury's assessment,including motive and demeanour. In relation to the former, the Judge stated:[60] You can look to whether they had a motive to give evidence in aparticular way. It has been suggested here that particular witnesses have beeninfluenced by motives to protect themselves or others, so you should take thatinto account.[66] The Judge continued:[65] In each case, you have also got to look not just at what was told to youby a particular witness but what other evidence there was which helps you toassess the accuracy or reliability of the witness' evidence.[66] You should test each witness' evidence against the yardstick of humannature or common sense. Does a witness have a good reason for saying whatthey said? Does it make sense? Is it consistent with the rest of the evidencethat you accept? Do other witnesses or other independent facts support orconfirm what the witness says? Did the witness make concessions whenconcessions [were] clearly called for? One of the indications of honesty andintegrity can be a willingness to admit a mistake or to make a concession thatneeded to be made. These are all the kind of factors you should consider.[67] So, you will need to weigh these contentions in the context of all theevidence you have heard, and make a decision about the credibility ofcompeting witness' testimony.[67] After giving these directions, the Judge then immediately stated "[a]voidjumping to the conclusion", and thereafter gave the direction as set out at [63] above.It is apparent therefore that the direction, insofar as it refers to the possibility of awitness having lied, is but one part of a wider set of directions addressing the jury'stask of assessing the credibility and reliability of the witnesses and is to be viewed inthat context.[68] Mr Gibson-Park sought to place reliance on observations made by this Courtin some cases that were critical or voiced the need for caution where trial judges haveinvited the jury to consider explanations for why a complainant may have lied, whichmay undermine a legitimate challenge to their credibility.15 We do not considerthe Judge's direction in this case is comparable to such a situation where suggestionshave been offered by the Judge as to why a complainant may have not told the truth.We do not consider the direction in any way undermined the conduct of the defencecase, rather, as already noted, it formed a legitimate part of the guidance provided bythe Judge regarding the jury's task that was of general application.[69] Nor do we consider the direction could be interpreted as some form ofendorsement of a submission made by the Crown in its closing that the jury needed tobe cautious about a suggestion that a witness is lying and should reject such aproposition. Notably, while both the Crown and the defence made competingsubmissions regarding whether Messrs Reedy and Kenworthy had lied, and whetherMr Gibson-Park and Mr Patuwai's brother had told the truth, the trial Judge made noreference to any particular person, such was the generalised nature of the directionprovided. It did not serve to bolster the Crown case, nor did it detract from the defenceposition regarding the Crown witnesses. As earlier observed, when read in context itserved as general guidance to the jury about their task when assessing the evidence.[70] In relation to a tailored lies direction regarding Mr Gibson-Park himself, nosuch direction was specifically sought. Trial counsel, in his affidavit filed for thepurposes of this appeal, explained that in his experience, a lies direction in thecircumstances of this type of case would be overly focussed on Mr Gibson-Park andhave the undesirable effect of attracting the jury's attention to the possibility he mayhave been lying. This is a common defence concern and a legitimate considerationwhen weighing the worth of a lies direction.15 See for example Bruce v R [2023] NZCA 159 at [21]–[29]; and Ngatai v R [2016] NZCA 352at [19]–[21] and [23].[71] It is relevant that the Crown's case did not include proof of any proven oradmitted lies. The Crown's submissions regarding Mr Gibson-Park having lied werelimited to arguments he had done so in the witness box when providing his account ofwhat had occurred and in his narrative of having been somewhere else at the time ofthe arson. As indicated by this Court in the recent case of Bruce v R, this is not thesituation where a lies direction is considered to be mandatory:16[21] A lies direction in relation to a defendant is typically given when thedefendant has lied out of court, or there is evidence the defendant has done so.A lies direction is not typically required when the defendant has given anexculpatory account to Police or where the Crown "simply maintains that adefendant's exculpatory explanation is false." Similarly, a lies direction is"generally inappropriate when a defendant's evidence is no more than a denialof the commission of the offence."[72] Mr Gibson-Park had not made a statement to police, nor had he madestatements to others that could be shown to be untruthful. The lies which the Crowncontended Mr Gibson-Park had told were limited to statements he made whenattempting to exculpate himself while giving his evidence. There may have been arisk that a lies direction given in that scenario would be interpreted by a jury as anindication the defendant had lied on oath and should not be believed. Such concernsmay legitimately outweigh any benefit that may have been thought to have been gainedfrom such a direction.[73] The decision by counsel not to seek a lies direction and the Judge's choice notto give one were not unreasonable. We do not consider the absence of a lies directiongives rise to any real risk of a miscarriage of justice.Absence of reliability warning[74] Mr Gibson-Park submitted that s 122(2)(c) of the Evidence Act was engaged.That provision provides:122 Judicial directions about evidence which may be unreliable(1) If, in a criminal proceeding tried with a jury, the Judge is of theopinion that any evidence given in that proceeding that is admissiblemay nevertheless be unreliable, the Judge may warn the jury of theneed for caution in deciding—16 Bruce v R, above n 15 (footnotes omitted).(a) whether to accept the evidence:(b) the weight to be given to the evidence.(2) In a criminal proceeding tried with a jury the Judge must considerwhether to give a warning under subsection (1) whenever thefollowing evidence is given:(c) evidence given by a witness who may have a motive to givefalse evidence that is prejudicial to a defendant:(3) In a criminal proceeding tried with a jury, a party may requestthe Judge to give a warning under subsection (1) but the Judge neednot comply with that request—(a) if the Judge is of the opinion that to do so might unnecessarilyemphasise evidence; or(b) if the Judge is of the opinion that there is any other goodreason not to comply with the request.(4) It is not necessary for a Judge to use a particular form of words ingiving the warning.[75] Messrs Reedy and Kenworthy provided statements to the police. They wereboth 18 years old at the time of the trial in November 2020. [Redacted]. Bothwitnesses' credibility was put in issue at trial by Mr Gibson-Park's counsel. In hisclosing, Mr Ryan stated:[Mr Reedy] confirmed that he wasn't charged with anything by the police.This is at stark odds to his evidence of being involved in a home invasion ofthe deceased's address, I suggest you treat Mr Reedy's evidence with somecaution. He minimised his involvement, he spoke with his best mateMr Kenworthy at the house on Sunday morning. They had two days togetherin Tauranga, before they both went to the police and gave their statements.His evidence I would suggest is self-serving, unreliable and he has minimisedhis involvement, but that's entirely up to you.[76] In relation to Mr Kenworthy, it was submitted to the jury that they should becautious of what he said because he had been with Mr Reedy on the Sunday morningfollowing the incident and spent two days in Tauranga with Mr Reedy, where it wassuggested there was discussion about the events that had taken place.[77] On his appeal, Mr Gibson-Park submitted it was apparent that Messrs Reedyand Kenworthy had been treated lightly for their involvement, [Redacted].[78] These criticisms of Messrs Reedy and Kenworthy's reliability and motivationswere understandably available and were made at trial. However, in terms of availableevidence, there was little to contradict Mr Reedy's account of not having physicallyparticipated in the attack on Mr Neilson, or Mr Kenworthy's limited admissions ofpunching Mr Neilson and kicking him while he was lying on the deck. Both men didadmit entering the house to look for drugs.[79] As already noted, the Judge, when directing the jury on their assessment of thewitnesses, observed that particular witnesses had allegedly been influenced by motivesto protect themselves or others and that this should be taken into account. In terms ofthe reliability of Messrs Reedy and Kenworthy, the defence submission they hadcolluded about their statements, minimised their involvement, [Redacted], wasrepeated to the jury by the trial Judge when summing up Mr Gibson-Park's case.[80] While we accept that some judges may have come to a different opinion fromthat of the trial Judge, we are not satisfied he was obliged to warn the jury of the needfor caution when deciding whether to accept Messrs Reedy and Kenworthy's evidence,or the weight to be given to their testimony. It is apparent the Judge did not considerthese witnesses' evidence fell into the category of being admissible but unreliable.17Whether Messrs Reedy and Kenworthy had a motive to give false evidence that wouldbe prejudicial to Mr Gibson-Park was an issue for the jury to assess, but we do notconsider the state of the evidence imposed a legal requirement on the Judge to formallycaution the jury about their reliability.18 No request was made to the Judge to providesuch a warning. In the circumstances, even had the Judge been satisfied Messrs Reedyand Kenworthy had a motive to give false evidence, the decision whether to give awarning remained discretionary. As has previously been observed by this Court, theessential question is whether such a warning would, in the circumstances, havematerially assisted the jury.1917 Evidence Act, s 122(1).18 Section 122(2)(c).19 B (CA58/2016) v R [2016] NZCA 432 at [59].[81] The issue of Messrs Reedy and Kenworthy's reliability was clearly beforethe jury. The circumstances in which they had become involved and come to givetheir evidence had been traversed, and the challenge to their reliability, based upontheir alleged minimisation of their involvement and the way they had been treated bythe authorities, had also been canvassed. The Judge alerted the jury to consider thepossible motives witnesses may have to protect themselves and recounted the criticismof their reliability which had been a focus of cross-examination and closing arguments.[82] Messrs Reedy and Kenworthy did not fall into a category of witness who couldbe described as accomplices seeking to implicate their co-defendant and there was nosuggestion, given the extent of their involvement, that they had been responsible forcausing Mr Neilson's death. Both the evidence of Mr Gibson-Park himself and theaccount provided by his co-defendant when speaking to the police largely confirmedthe lesser roles these witnesses played on the night, although both defendants hadMessrs Reedy and Kenworthy participating to a greater extent in the physical attackthan they otherwise had admitted in their evidence. Importantly, both defendants'narratives had these two witnesses leaving the scene when they claimed to havedone so.[83] We do not consider this was a situation where the issue of the potentialunreliability of the witnesses was not fully apparent to the jury, or that they wouldhave benefited from such a warning. While we accept it is not always appropriate toleave the jury to consider the risks associated with particular types of evidence on thebasis of counsels' submissions, and in some situations the need for caution may requirethe imprimatur of the trial judge, we are unable to conclude this was a mandatoryrequirement in this case. Having regard to the evidence traversed at trial, thesubmissions made by counsel and the directions given by the trial Judge regarding thereliability and credibility of witnesses, we do not consider an explicit warning wouldhave materially assisted the jury with their assessment of these witnesses. In thecircumstances of this case, we do not consider that any miscarriage of justice has arisenfrom such a warning not being provided.The way the alibi evidence unfolded[84] In the course of Mr Gibson-Park's evidence, he stated that at the time it wasalleged he committed the arson of Mr Neilson's house, he was in the company of hisgirlfriend, Angel Martin, at the beach. During his evidence it was brought tothe Court's attention that no notice of alibi had been given by Mr Gibson-Park to thiseffect and that, with this evidence having only been disclosed in the witness box attrial, the Crown had not been afforded the opportunity to make enquiries of the personMr Gibson-Park claimed he had been with at the time of the alleged offence. In theabsence of Ms Martin being available, the Crown proposed that it should be permittedto elicit in rebuttal a statement she provided to the police that made no mention of hergoing with Mr Gibson-Park to the beach.[85] Because the prosecution could not reasonably have foreseen this evidence wasgoing to be given and had been taken by surprise, the Judge ruled,20 pursuant to s 98(3)of the Evidence Act, that permission should be granted for the prosecution to callrebuttal evidence as it related to a matter arising out of the conduct of the defence, therelevance of which could not reasonably have been foreseen.21 No issue is taken withthe Judge's conclusion that the interests of justice test for the calling of rebuttalevidence had been met. However, it was argued a necessary prerequisite for theadmission of the hearsay statement made by Ms Martin that she, as the maker of thestatement, was "unavailable as a witness" had not been satisfied.22[86] After hearing from the police officer who took the statement from Ms Martin,the Judge ruled he was satisfied the statement had been made in circumstances thatprovided reasonable assurance it was reliable and that, because Ms Martin was"unavailable as a witness (or undue expense or delay [would] be caused if she wasrequired to be a witness)", the appropriate course was to permit Mr Gibson-Park toprovide his alibi evidence but to allow the prosecution to call the police officer to giveevidence of what Ms Martin had said when interviewed.20 R v Gibson-Park HC Gisborne CRI-2019-065-91, 24 November 2020.21 Evidence Act, s 98(3)(b).22 Section 18(1)(b)(i).[87] It was argued on behalf of Mr Gibson-Park that the Judge had misconceivedthe test for the unavailability of a witness. Counsel referred to observations made bythis Court that a person does not have to be living in New Zealand in order to beeligible to give evidence.23 It was emphasised that s 16(2)(b) of the Evidence Actprovides that a person is unavailable as a witness if he or she is outside New Zealand,and, additionally, it is not reasonably practicable for him or her to be a witness. It wassubmitted the focus must be on the factual issue of reasonable practicability and whatsteps would be necessary to secure the attendance of the witness at trial, whether inperson or by some technological means such as a video link.24 It was argued the onlyindication of the police having made efforts to locate Ms Martin was Mr Ryan'saffidavit filed for the purpose of this appeal, where he stated he understood police hadmade some efforts to locate Ms Martin but were unable to do so.[88] We consider this criticism of the Judge proceeding on the basis the witness wasunavailable is unsustainable. At the time Mr Gibson-Park was cross-examined aboutbeing with Ms Martin at the beach, he was asked where she was now. He replied"Australia". Significantly, he also confirmed, when asked, that he had "[b]een in touchwith her lately". As will shortly become apparent, despite Mr Gibson-Park having themeans to contact the witness, he was unwilling to cooperate. It is also reasonably clearfrom the Judge's written ruling and the transcript of the preceding legal discussion thatMs Martin's unavailability was not actively contested. Given the circumstances asthey prevailed at the time, we consider the conclusion as to Ms Martin's unavailabilitywas inevitable.[89] Mr Ryan had spoken to Mr Gibson-Park regarding his version of events and hewas aware police had taken a statement from Ms Martin when he askedMr Gibson-Park where she was. Mr Gibson-Park told him she was in Australia butrefused to tell Mr Ryan where, as he did not want police to contact her. In thosecircumstances, we are doubtful Mr Gibson-Park could legitimately have contested theunavailability of Ms Martin when he was aware she was in Australia, had the apparentmeans to contact her and make her available, but refused to do so despite his23 Solicitor-General v X [2009] NZCA 476 at [35].24 At [36].obligations under the Criminal Disclosure Act 2008.25 This left the police to maketheir own enquiries in the short time available. That being the situation, it isunderstandable there was an acceptance the witness was unavailable.[90] Given the exigencies of the situation, as a result of the previously undisclosedalibi which was only raised at trial, when Ms Martin's whereabouts were unknownother than to Mr Gibson-Park himself, the trial could not be adjourned for anindeterminate period in the hope that Ms Martin would be able to be located inAustralia. In those circumstances, it was not reasonably practicable for Ms Martin tobe called as a witness. To locate her would have caused undue delay, which of itselfis a basis upon which a hearsay statement can be admitted.26[91] The second matter raised by Mr Gibson-Park is a submission that the failure toprovide notice of alibi was an error by counsel that carried a real risk of causing amiscarriage of justice. It was argued that trial counsel had failed to appreciate that thearson charge was important because the motivation for the offending was to concealMr Neilson's homicide. It was submitted that, while it was unclear when Mr Gibson-Park had disclosed his alibi to counsel, it was apparent he had done so at some timebefore trial, and the admission of Ms Martin's statement, it was argued, had allowedthe Crown the means to assert Mr Gibson-Park had concocted the alibi during thecourse of his evidence when that had not been the case.[92] It was submitted that trial counsel had failed to advise Mr Gibson-Park of theimplications of not providing notice of alibi, and that it was foreseeable the Crownwould be allowed to adduce evidence of Ms Martin's statement if there was notcompliance with the requirements of the Criminal Disclosure Act, including disclosureof Ms Martin's details. As a result, in the absence of trial counsel having given thisadvice and forewarning to Mr Gibson-Park, events unfolded as they did, toMr Gibson-Park's prejudice.[93] We do not consider Mr Gibson-Park was disadvantaged by the failure toprovide notice of alibi. He was permitted to adduce his account of where he was at25 Criminal Disclosure Act 2008, s 22(3).26 Evidence Act, s 18(1)(b)(ii).the time the arson was committed and, to that extent, was in the same position hewould have been if there had been compliance with the requirements of the legislation.Such compliance would have required Mr Gibson-Park to have disclosed the nameand address of Ms Martin at the time of giving notice of his alibi. This was acontinuing obligation up until trial,27 but was something he was unwilling to do.Mr Gibson-Park did not want Ms Martin to be located, and it is striking that neitherMr Gibson-Park nor Ms Martin have filed evidence in support of this ground of theappeal verifying that she would have provided evidence in support of the alibi.[94] In the absence of being able to contact Ms Martin, the Crown was left withhaving to adduce an unsigned statement from Ms Martin that did not address the actualissue of whether or not she had been at the beach with Mr Gibson-Park. The Crownhad to be content with a submission that when interviewed, Ms Martin made nomention of going to the beach with Mr Gibson-Park, although she was not asked aboutthat topic when interviewed. Mr Gibson-Park was at least left in the somewhatadvantageous position of being able to put forward his explanation for where he wasat the time of the arson without contradiction. His evidence on the issue could not beexcluded or challenged by any other witness, and the way it was permitted to beadduced accorded with his instructions not to involve Ms Martin.[95] We do not consider this ground has merit. There is an illogicality inMr Gibson-Park advancing an argument of having been prejudiced by the Judge'sapproach to the alibi issue when he was permitted to adduce his alibi, despite beingunwilling to disclose Ms Martin's whereabouts in breach of his statutory obligation todo so. As earlier noted, even now on his appeal he has not offered any evidence fromMs Martin to support his contention that a miscarriage of justice occurred. In thesecircumstances, we are satisfied there is no risk of such an occurrence having arisen.Conclusion[96] Having reviewed each of the grounds of appeal individually and collectively,we are satisfied that there is no risk of a miscarriage of justice.27 Criminal Disclosure Act, s 22(3)(c) and (d).Result[97] The appeal against conviction is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent