RITIKA v R [2022] NZCA 415

RITIKA v R [2022] NZCA 415 [5 September 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 204OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA318/2021[2022] NZCA 415BETWEEN RITIKAAppellantAND THE QUEENRespondentHearing: 15 June 2022Court: Courtney, Mander, Fitzgerald JJCounsel: L B Cordwell for AppellantFMT Culliney and J K Bola for CrownJudgment: 5 September 2022 at 11.30 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Fitzgerald J)[1] Following a jury trial in the District Court, Ms Ritika was found guilty of threecharges, being injuring with intent to injure or with reckless disregard, wounding withintent to injure or with reckless disregard and ill-treatment or neglect of a child. Thecharges arose out of injuries sustained by Ms Ritika's eight-week-old baby daughter(who we will refer to in this judgment as M). Ms Ritika's husband, Mr Kumar, alsofaced a charge of ill-treatment or neglect of a child but was acquitted on that charge.Ms Ritika was sentenced by Judge Aitken to two years and seven months'imprisonment.1[2] The injuring charge against Ms Ritika related to multiple rib fracturessustained by M, and the wounding charge related to subdural (brain) haemorrhages.We will refer to these two sets of injuries as "the charged injuries". Following M'sadmission to Starship Children's Hospital (Starship) on 8 November 2018, testsrevealed a number of other injuries to M, namely a skull fracture, retinalhaemorrhaging in her right eye, five leg fractures, two arm fractures and five toefractures. We will refer to these injuries as "the other injuries". While evidence aboutthe other injuries was led at trial, they did not form the basis of any additional chargesagainst Ms Ritika.[3] The Crown's case at trial was that all the injuries sustained by M werenon-accidental and that Ms Ritika had caused them. Ms Ritika did not suggest that itwas a reasonable possibility that someone else had caused some or all of the injuries.Rather, the sole focus of the defence case was that the Crown could not exclude thereasonable possibility that the injuries were the result of rickets or some other inherentbone deficiency suffered by M. The jury's verdicts plainly rejected that possibility.[4] Ms Ritika now appeals against her convictions on the basis that there has beena miscarriage of justice. There are two grounds of appeal: 2(a) The trial Judge erred by failing to consider the basis upon which theevidence of the other injuries was admissible, and as a consequence,failed to properly direct the jury on how it ought to approach thatevidence.3 This failure is said to have resulted in a real risk that the1 R v Ritika [2021] NZDC 11053.2 In his written submissions, counsel for Ms Ritika on the appeal, Mr Cordwell, confirmed that theoriginal grounds of appeal were abandoned. He sought leave to amend the notice of appeal. Therewas no objection by the Crown and the hearing proceeded on the basis of the two new grounds ofappeal.3 Ms Ritika's appeal was originally advanced on the basis that the evidence of the other injuries wasinadmissible. In his oral submissions, however, Mr Cordwell advised that Ms Ritika no longerchallenged the admissibility of the evidence of the other injuries provided that appropriatedirections were given to the jury, both to explain the relevance of the evidence and to ameliorateits undoubted prejudicial effect.jury engaged in impermissible reasoning and caused substantialprejudice to Ms Ritika as a result.(b) Despite a key strand of the Crown's case being that Ms Ritika had liedabout a range of matters (in both pre-trial statements she made to thepolice and her evidence at trial), and that those lies were relied on ascircumstantial evidence of Ms Ritika's guilt, the Judge failed to give alies direction. That failure is said to have been exacerbated by the factthat the Judge gave a lies direction about aspects of Mr Kumar'sevidence (in which he accepted that he had lied) and that the terms ofthat lies direction (namely that Mr Kumar might have lied to protectsomeone else) was unfairly prejudicial to Ms Ritika.[5] We must allow the appeal if we are satisfied that a miscarriage of justice hasoccurred.4 Relevantly for present purposes, a miscarriage of justice means any error,irregularity, or occurrence in or in relation to or affecting the trial that has created areal risk that the outcome of the trial was affected.5 A real risk in this context is"a reasonable possibility that a not guilty (or a more favourable) verdict might havebeen delivered if nothing had gone wrong".6Factual backgroundKey evidence at trial[6] M was born on [redacted]. She is Ms Ritika and Mr Kumar's first child. Aspart of their traditional custom, Ms Ritika was required to remain at home with M forabout the first 40 days of her life.[7] On 31 October 2018, Ms Ritika took M to the family's GP, as M was in anunsettled state. The GP suspected M had colic and prescribed a course of Gaviscon.4 Criminal Procedure Act 2011, s 232.5 Section 232(4)(a).6 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].[8] The events of 7 November 2018 were of some importance to the Crown case.It was the first day of the traditional Diwali festival. Mr Kumar, who had recentlystarted a new job working nightshifts at a local supermarket, had the day off.Following a disagreement with Ms Ritika that morning about doing household chores,he left the family home and was away for most of the day. The Crown's case was thatthis infuriated Ms Ritika and the evidence confirmed that she sent Mr Kumar a totalof 296 communications (phone calls or text messages) that day. The Crown relied inparticular on a series of text messages Ms Ritika sent to Mr Kumar over the course ofthe afternoon, including a threat to drink bleach, taking an oath on M's life7 and amessage (sent at 5.27 pm and again at 5.36 pm) reading "Baby is crying a lot, I don'tknow what happened."[9] Mr Kumar arrived home shortly thereafter, and a neighbour gave evidence thatshe heard a baby crying, a man yelling and a woman screaming at Ms Ritika andMr Kumar's address. Another neighbour visited Ms Ritika at home later that eveningat around 9 pm, and Ms Ritika was holding M. The neighbour said she did not noticeanything unusual about the baby, though described M as "[a]sleep. Sleepy".[10] At around 11 am on the morning of 8 November 2018, Ms Ritika andMr Kumar took M to their GP as they were worried about her condition. Ms Ritikadescribed M as crying and "opening her eyes and shutting her eyes". The GP describedM as being in a "terrible condition". He was concerned that M might have meningitisand called urgently for an ambulance. Following her admission to Starship,M presented with seizures and a CT scan of her brain revealed that she had a fracturedskull and subdural haemorrhages. The paediatric radiologist from Starship who gaveevidence of the various injuries to M dated the subdural haemorrhages as betweenthree hours to seven to 10 days old.[11] The following day, a full CT skeletal survey of M revealed a number of ribfractures, the skull fracture and three leg fractures (described as "buckle fractures").The medical evidence was that the rib fractures could have been one to two weeks old,and the leg fractures no more than a week old.7 "I am taking an oath in your daughter's name. If you value that oath then come homeimmediately." (English translation).[12] The next day, 10 November 2018, an assessment by a paediatricophthalmologist revealed retinal haemorrhaging in M's right eye. A follow-up skeletalsurvey of M on 21 November 2018 showed previously undetected fractures, being twoarm fractures, one leg fracture and five toe fractures.[13] Ms Ritika participated in two evidential video interviews (EVIs) with thepolice in late November 2018, both of which were played to the jury. The first, whichtook place on 22 November 2018, was brief. Ms Ritika was concerned that herhusband was also in the process of giving an EVI, and persistently raised her concernsas to his ability to participate in the interview and asked to speak with him. Theinterviewing officer informed Ms Ritika that Mr Kumar's interview had alreadystarted and thus could not be interrupted. At that point, Ms Ritika advised theinterviewing officer that she was feeling dizzy and the interviewing officer agreed toend the interview. Ms Ritika then passed out and fell onto the floor.8 The Crown'scase was that Ms Ritika had feigned this fainting episode.[14] Ms Ritika's second interview took place on 23 November 2018. The policehad earlier sought and been granted a surveillance device warrant pursuant to whichthey installed listening devices in the family home, and accordingly obtained covertaudio recordings of Mr Kumar and Ms Ritika's discussions on the evening of22 November. In her judgment on the admissibility of Ms Ritika's 22 November EVI,the Judge summarised Ms Ritika's statements in the intercepted conversations asfollows:9(a) She now knows what to say, her husband having given his statement;(b) If that had not happened – in other words, her husband had not made astatement the day before she was required to make a statement – therewas a risk of giving conflicting accounts;(c) That she knew she had the "option" of not making a statement on22 November and did not want to make a statement; and(d) She describes falling to the ground, how she appeared (to unnamedothers) who were called to see her, goes on to say: "I knew everything,the thing was I did not want to make a statement", and again refers to8 Judge Aitken ruled this EVI admissible in a judgment delivered on 15 July 2021: R v Ritika [2021]NZDC 4599.9 At [27].the "problem" if she said something and another person had saidsomething else.The respective cases at trial[15] The Crown's case at trial relied on three key strands of evidence. The first wasthe medical evidence, which the Crown said was overwhelming that the collection ofinjuries suffered by M were non-accidental. In terms of the charged injuries, theCrown's case was that the subdural haemorrhages (and other acute injuries) had beeninflicted on the afternoon of 7 November 2018, and that the rib fractures (and the otheraged injuries) were inflicted shortly before Ms Ritika took M to the doctor on31 October 2018.[16] The second strand of the Crown's case was that Ms Ritika was the only personto have sustained contact with M over the eight weeks since her birth, and thus musthave been the person who inflicted the injuries, including the charged injuries.[17] The third strand of the Crown's case was that Ms Ritika had lied about manydifferent things, in both her statements to police and her evidence at trial, and the factshe had lied to that extent was further circumstantial evidence pointing to her guilt.[18] The defence case also centred around three strands. The first was that it wasimpossible on the medical evidence to accurately date the various injuries sustainedby M, which cast real doubt on the Crown case that they were sustained on twoseparate occasions.[19] The second and perhaps most important strand of the defence case was thatthere was no reason for Ms Ritika to have caused the injuries to M, and given thenumber and nature of them, they must have resulted from some other unexplainedcause such as an underlying bone condition. Trial counsel for Ms Ritika alsoquestioned the confidence the jury could have in the medical experts, given that theskeletal survey of M in late November 2018 picked up some injuries that had not beendetected before that point, and which on the defence case could have been sustainedby M after her admission to Starship.[20] The third strand of the defence case responded to the Crown case aboutMs Ritika's suggested lies. Ms Ritika firmly denied that she had lied and said that hervarious comments and actions had instead been misconstrued or taken out of context.Ms Ritika also denied that she and Mr Kumar had had a serious argument late in theafternoon/early evening of 7 November 2018. She suggested that the neighbour whoheard yelling and screaming was either mistaken as to where she said the noise hadcome from, or it was simply her and Mr Kumar speaking loudly as they carried outtheir household chores.First ground of appeal — the evidence of the other injuries[21] Given the issues raised on this aspect of the appeal, it is necessary first tosummarise the medical evidence, including that of the other injuries, before examininghow that evidence was relied on and dealt with at trial.The evidence[22] Four experts were called by the Crown to give expert medical evidence.No expert medical evidence was called by the defence. As will be evident from thefollowing summary, evidence of the other injuries formed a substantial part of theexperts' evidence.[23] The first expert witness, Dr Wilson, is a paediatric radiologist. She gaveevidence about M's CT scan, MRI scan and two skeletal surveys. Dr Wilson explainedthat the brain CT scan conducted on 8 November 2018 showed small areas of bleedingaround both sides of the brain, which Dr Wilson said presented as "new or fresh". TheCT scan also showed a fracture to the skull to the left side of M's head.[24] Dr Wilson next addressed the full skeletal survey of M on 9 November 2018.That survey confirmed the skull fracture seen in the CT scan, as well as a number ofrib fractures. Dr Wilson described these rib fractures as "healing" and said they couldhave been anywhere between seven days and two weeks old.10 She also explained that10 Dr Wilson said that one of the fractures was probably less than a week old.the skeletal survey showed a number of buckle (or bend) fractures to M's legs andankles.[25] Dr Wilson then discussed the MRI scan taken on 15 November 2018. Thisscan confirmed the subdural haemorrhages seen in the CT scan, and in addition, anarea of brain damage in the right frontal lobe, which was most likely caused by impact.Dr Wilson described that area of brain damage as being acute or recent.[26] Dr Wilson then addressed the follow-up skeletal survey of 21 November 2018,which confirmed the previously observed fractures and also identified a number ofpreviously unidentified fractures (including in M's toes). Dr Wilson was of theopinion that the toe fractures would have been at least seven to 10 days old by the timeof the 21 November 2018 skeletal survey, though were "probably older" based on allthe other injuries.11[27] In terms of the injuries overall, Dr Wilson said that the imagery identified atotal of 38 rib fractures (involving 18 ribs), five leg fractures, two arm fractures andfive toe fractures. Her opinion was that the combination of injuries was likely to havebeen caused in the context of at least two separate episodes. She also confirmed thatin her opinion all of M's bones looked completely normal (apart from the fractures)and that she did not notice any underlying bone development or density issue. Shealso considered the possibility that the skull fracture had been suffered during M'sdelivery (through the use of forceps and then a ventouse delivery) to be "veryunlikely". Dr Wilson also did not consider it possible that the rib fractures weresuffered during M's delivery.[28] The evidence of a consultant paediatric ophthalmologist who had examined Mwas read to the jury by consent. His evidence was that M's left eye was normal, whileher right eye showed retinal haemorrhaging (bleeding) in different layers and of a typeseen typically with non-accidental injury.11 Dr Wilson accepted it was possible that some of the fractures could have occurred within the sevendays immediately preceding the skeletal survey on 21 November 2018 (and thus after M'sadmission to Starship) but considered that to be "unlikely".[29] The third medical expert called by the Crown was a paediatric endocrinologistfrom Starship, Dr Albert. Dr Albert explained that at the time M was referred to himfor advice, she had a low calcium level and a very low level of vitamin D. He saidthat vitamin D deficiency could not explain the "many significant traumatic injuries"that M had sustained.[30] Dr Albert's evidence was that there was nothing to suggest an underlying bonecondition or deficiency in M. He was cross-examined about the possibility of Mhaving rickets or a bone disease called osteogenesis imperfecta (a condition wherechildren are born with very brittle bones), but was firm in his view that there was noclinical evidence of such conditions. He also noted that conditions of this nature wouldnot weaken the brain or the eyes in such a way as to make them bleed. Dr Albert'soverall opinion was that M had a pattern of injuries consistent with non-accidentalinjury.[31] The final medical expert witness was a consultant paediatrician at Starship,Dr Raithatha. Dr Raithatha summarised the injuries observed in the various scans andother tests, stating:In addition imaging of her body revealed multiple rib fractures and fracturesto her limbs of varying ages. She had low Vitamin D levels, with no evidenceof radiological Rickets or bone disease, therefore nothing to suggest her boneswere weaker. For the duration of her admission to hospital, there was nosufficient explanation for [M's] medical presentation. This combination ofinjuries cannot be explained by natural medical causes. There was noevidence of a significant underlying medical condition that would in someway contribute to this presentation. There was no history of serious accidentaltrauma. Therefore, in the absence of all of the above, these injuries wereextremely concerning for inflicted head injury (Abusive Head Trauma) andchild abuse (Non-accidental Injury or Physical Abuse).(Emphasis added.)[32] Dr Raithatha concluded her evidence-in-chief by stating:There was no suitable explanation provided as a cause of [M's] criticalmedical presentation with a highly concerning pattern of injury identified.The pattern of injury seen in [M] was, in my medical opinion, diagnostic ofAbusive Head Trauma with Impact and Child Abuse. In the absence of anyhistory of significant accidental trauma, non-accidental trauma or PhysicalAbuse was by far the most likely diagnosis and cause of [M's] significant,acute head injury with seizures and additional signs of injury. The overallinjury pattern suggested that [M] had been injured on more than one occasion.(Emphasis added.)[33] Dr Raithatha was cross-examined at length by trial counsel for Ms Ritika,including on the defence case that the pattern of injuries gave rise to the possibility ofan underlying bone disorder, such as rickets. Dr Raithatha maintained her opinion thatthe pattern of injuries suggested they were non-accidental.The parties' reference to and reliance on the evidence[34] The prosecutor, in his opening address, first referred to the evidence to be givenof the subdural haemorrhages identified upon M's admission to Starship. He thenprovided a brief overview of the medical evidence to be called by the Crown, and thustouched on the other injuries, but not in a substantive way.[35] The prosecutor went on to state that the relevant agencies then needed to "seeif they could find an explanation for these sets of injuries", and closed his openingaddress by stating:I've given you an introduction to the evidence. There's some complexity in itbut ultimately this case, I suggest, is simple. This child was hurt seriously, notonce but on two separate occasions. And the medical evidence, as detailed asit may be, has worked through the possibilities as to how the child was hurt.That's the basis on which the Crown has built this case. And that's where Iwill leave it.(Emphasis added.)[36] In her brief opening statement to the jury on the issues arising at trial, counselfor Ms Ritika highlighted that a key issue would be how the injuries had occurred, andthat the defence case was that the jury could not be sure that they werenon-accidental.12[37] The prosecutor made a number of references in his closing address to the fullcollection of injuries. For example, at the outset of his closing address the prosecutorstated:Thank you, your Honour, Mr Foreman, members of the jury, when I stood upand spoke with you just over two weeks ago and I outlined to you what it is12 Counsel did not refer to the physical injuries to M in her opening address following the close ofthe Crown case.that the Crown is saying in this case one of the things I suggested was thatwhen it comes down to it the case is reasonably straight forward or simple. Ifyou put the injuries that were observed by the doctors. In one part of yourreasoning process and you bear in mind everything that they told you abouthow those injuries could have happened and you line that up with the othermost important fact in this case which is that Ms Ritika was the only personwho had that extended level of contact with the baby without any opportunityor anyone to simply intervene, cause the injuries and get away unnoticed.(Emphasis added.)[38] He also said:You may have been thinking: "Look it can't be right. There must be somethingelse going on here that just hasn't been covered by what the doctors were ableto see, by what the police have been able to find out about the movements ofthe various people involved because it's just hard to believe, isn't it? It's hardto believe that a mother would inflict that level of force on their baby sufficientto cause the injuries that I'm going to have to go through again with you inmy address.(Emphasis added.)[39] Having referred to M's admission to Starship, the prosecutor then said:[Dr Wilson] saw bleeding in the subdural spaces beneath the skull on bothsides of the brain. She saw a broken parietal bone, one of the skull bones, andswelling above it. And as her evidence went on and you heard about theskeletal survey on the 9th, all of those healing rib fractures, the MRI over thenext few days, the apparent evidence or the indication from Justin Mora theophthalmologist who told us about the bleeding in the retinal nerve fibres, thischild's injuries just mounted up and mounted up.(Emphasis added.)[40] Trial counsel for Ms Ritika made extensive reference to the other injuries inher closing address. Focusing first on the rib injuries and the difficulty in accuratelydating them, she addressed the jury on how the rib fractures had potentially occurred,submitting that it was possible that they were a result of nutritional rickets orosteogenesis imperfecta. Counsel then went on to address the various abnormalbiochemical blood test results taken following M's admission to hospital stating:Now the reason I am bringing these matters to your attention now is becausewhen we focus on [M], an eight week old baby with multiple fractures ofvarious ages and in various locations, fractures thought by the doctors to haveoccurred on multiple occasions, we have [M's] parents who don't drink or dodrugs. Ms Ritika who you may think was very happy, attentive and lovingtowards her daughter, how is it possible then with seemingly no red flags perse that [M] could have received so many injuries over suspected multipleoccasions and some of which are possibly as old as her. And so whilstDr Albert was very clear in his opinion that [M] did not have rickets, you maythink that perhaps given the circumstances, the family circumstances thatI have outlined, perhaps as an alternative explanation the bone mineral densityof [M] had been compromised.Now at this point I just want to say something about other fragile boneconditions such as osteogenesis imperfecta. Whilst Dr Albert also discountedthis condition, it appears that he did not consider the possibility that some ofthe rib fractures could have been dated to [M's] birth. It may appear to youthat that just wasn't a consideration for him as, like he said, a bone conditionwould not have cause (sic) the brain bleeding and retinal haemorrhages.The other point I wish to make in this respect relates to the fractures identifiedon 21 November 2018, so that was 12 days after the skeletal survey on9 November 2018 was undertaken. So bearing in mind the metatarsals here,or the fractures to the toes on [M's] left foot, those injuries were either missedon 9 November 2018 or they weren't there. And if they were missed, it mustreally make you wonder how accurate the doctors' opinions are for thestrength of the underlying bone mineral density. However, if they were notthere in the first place, then that of course, you may think, is very strongevidence that [M] did suffer a condition which caused her bones to be morefragile than usual.(Emphasis added.)[41] Defence counsel went on to conclude:And you may think that one explanation may not account for all of the injuries.You may also think the possibility of more than one medical condition cannotbe discounted here, because the various injuries that [M] did have could beexplained, it is submitted to you, by more than one medical condition.(Emphasis added.)The Judge's summing up[42] The Judge traversed the standard criminal jury trial directions, took the jurythrough the structure of the question trail and gave the tripartite direction in relationto the defendants' evidence. The Judge then turned to the Crown's case againstMs Ritika (and the defence response to it). The Judge explained that the Crown's caseagainst Ms Ritika was circumstantial, and then gave the standard directions oninferences and circumstantial evidence, the latter by reference to the "strands of therope" analogy. The Judge then went on to discuss the three "strands" of the Crowncase and the defence position on each of those strands.[43] The Judge addressed the first strand of circumstantial evidence the Crownrelied on, the medical evidence of all M's injuries, and provided a summary of each ofthe four medical experts' evidence. After discussing the evidence of Dr Wilson, theJudge said:[63] An important point, members of the jury, the defendant isn't chargedwith causing the skull fracture. She is not charged in respect of many of theother fractures which Dr Wilson observed. She is charged with causing therib fractures and the subdural haemorrhages, the brain bleeding. But you havebefore you all of the evidence of the medical findings which may be relevantfor you to consider when considering the evidence generally.[44] This is the direction that Mr Cordwell submits was inadequate to direct the juryon how to approach the evidence of the other injuries. However, this was not the onlydirection the Judge gave on this point. Having summarised the medical expertevidence (including a summary of Dr Raithatha's evidence about the "combination"or "pattern" of injuries, see [31] and [32] above), the Judge concluded her discussionof this first strand of the Crown case by stating:[74] As I said, the Crown case is a circumstantial one, a key thread in therope, of course, is the medical evidence and the Crown say, look at how [M]presented to the doctors on the 8th of November. It's no coincidence, theCrown say, that she had all of these injuries. It's no coincidence that there wasno medical explanation for them. These injuries, the pattern of them, theabsence of any medical explanation, the absence of any accident that mighthave caused harm, the Crown say to you members of the jury, the medicalevidence is compelling and it points directly to Ms Ritika's guilt. As I haveindicated, the defence challenge each of those medical opinions and it will befor you to assess them.[45] The Judge then went on to address the remaining two strands of the Crowncase (and the defence response to each), namely that only Ms Ritika had sustainedaccess to M and thus sufficient opportunity to have caused all of the injuries; and whatthe Crown said was the extent of Ms Ritika's lies both to the police and in her evidenceat Court, also relied on as circumstantial evidence of guilt.First ground of appeal – the parties' submissions[46] Mr Cordwell submits that based on the medical evidence, it was impossible toconclude that all the injuries had been caused in a single continuous event, and thatthere was a "real argument" that the various injuries were unrelated. In this context,Mr Cordwell submits that the evidence was either background or traditional propensityevidence (in the sense discussed by the minority in Mahomed v R),13 but in either case,and without appropriate directions, there was a real risk of the jury engaging inimproper reasoning. Mr Cordwell framed this as the jury reasoning from theproposition that Ms Ritika had a propensity for violence to her guilt, or that Ms Ritikawas guilty of the charges "because she must have caused the earlier injuries".Mr Cordwell submits that the Judge's direction at [43] above fell well short of whatwas required to ameliorate the risk of such illegitimate reasoning. When questionedas to what direction the Judge ought to have given the jury, Mr Cordwell said that a"full" propensity direction as discussed in Mahomed was required.14[47] The Crown, on the other hand, submits that the evidence of the other injurieswas plainly relevant to determining how the charged injuries came about, noting themedical evidence was that the pattern of injuries pointed strongly to them beingnon-accidental. The Crown also submits that it was open to the jury to conclude thatthe acute (fresh) injuries, including some of the fractures and the subduralhaemorrhages, had occurred on 7 November 2018, and the aged injuries (including thefractured ribs) had occurred during an earlier incident sometime before 2 November2018. On this basis, the Crown says it was open to the jury to conclude that the otherinjuries were likely to have been sustained by M at the same time as the chargedinjuries.[48] The Crown further submits that in a case such as this, where there are a numberof linked events or injuries, each of which could give rise to a charge, the Crown isnot required to charge for each and every assault that occurs; rather the charge listought to reflect the most serious of the alleged offending. The Crown refers to thisCourt's decision in Malaeulu v R, a case involving sexual offending, in support of thisproposition.15 In Malaeulu, the defendant faced nine charges arising from one seriesof events, the Crown having laid a separate charge for each discrete step said to havebeen taken by the defendant along the way to sexual penetration. The Court describedthose events as "plainly interlinked or immediately sequential" and said it would have13 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145. See [62]–[66] below.14 At [95].15 Malaeulu v R [2013] NZCA 121.expected the events in question to have generated two or three charges which wererepresentative of the most serious offending.16[49] The Crown also submits that the evidence of the other injuries was not unfairlyprejudicial; on the contrary, it was an integral part of the defence case that the injurieswere the result of a bone deficiency suffered by M. The Crown also notes that thedefence relied on the evidence of injuries detected for the first time in the skeletalsurvey of 21 November 2018 to cast doubt on the medical evidence overall.Analysis[50] We begin by making two preliminary points.[51] First, it is important to identify the issues arising at trial, to which the evidenceof the other injuries must be relevant in order to be admissible. There were two keyissues at trial:(a) how the charged injuries had been caused, that is, whether the jury wassure that they were non-accidental; and(b) assuming the jury was sure that the charged injuries werenon-accidental, whether the jury was sure that it was Ms Ritika whohad inflicted them.[52] Second, in his written and oral submissions, Mr Cordwell referred to the otherinjuries as "the discrete injuries". While we understand why counsel labelled the otherinjuries in this way, we consider the label inapt. It would be highly artificial, in ourview, to characterise the collection of injuries to M as a range of separate injuries thatcould sensibly be disaggregated from each other. Such an approach ignores the factthat a series of similar injuries had been sustained by the same child over an eight-weekperiod and, in all likelihood, over a period somewhat shorter than that.17 Rather thanbeing discrete, we see the injuries as inextricably linked, as the earlier summary of the16 At [15]–[16].17 While the medical experts agreed that it was difficult to date the various injuries, some were clearlyfresher than others, and the preponderance of the evidence was that the older injuries were morelikely to predate M's admission to Starship by around two or so weeks.medical evidence highlights. We expect that it was because the injuries wereinextricably linked that neither party's counsel nor the (experienced) trial Judge raisedany issue as to the admissibility of the evidence about them.[53] The evidence about the other injuries was plainly relevant to how the chargedinjuries came about, and had a high degree of probative value in relation to that issue.It was the pattern or collection of injuries as a whole that led the medical experts to beso firm in their view that the injuries were non-accidental. To put the point anotherway, the medical experts could not have given a coherent account of how theyconsidered the charged injuries came about without reference to the evidence of theother injuries. Conversely, the pattern of injuries was also relevant to the defencetheory of the case, namely that the extent of the fractures seen was suggestive of Msuffering from an underlying bone condition.[54] The evidence of the other injuries was also relevant to the issue of who causedthe charged injuries, in terms of the Crown's case that it was only Ms Ritika who hadthe opportunity to cause such a collection of injuries. The evidence accordinglypresented the jury with a full and realistic picture of what had happened to M over therelatively short period from her birth to the point of admission to Starship, which wasrelevant to the jury's consideration of who was responsible for that state of affairs.[55] The preceding discussion assumes that the evidence's relevance is to beassessed through the lens of s 7 of the Evidence Act 2006 (the Act). However, weaccept Mr Cordwell's submission that the evidence is arguably propensity evidence,on the basis of the assertion inherent in the Crown's case that it was Ms Ritika whocaused all the injuries. Put another way, the Crown's case carried with it an implicitassertion that the collection of injuries was a product of Ms Ritika's propensity forviolence against M.[56] A similar issue arose in R v Broadhurst, in which the appellant was chargedwith the murder of his partner's two-year-old daughter.18 At trial, he was found notguilty of murder but guilty of manslaughter. In his appeal against conviction, theappellant argued that the trial Judge had wrongly admitted evidence of other injuries18 R v Broadhurst [2008] NZCA 454.were sustained by the deceased prior to the fatal injuries (those earlier injuries not thesubject of separate charges). The defence case at trial was that the deceased wasaccident-prone and that the fatal injuries were the result of accidents.[57] The trial Judge in that case had ruled that the evidence of the earlier injurieswas admissible, noting that its purpose was to rebut the defence case of accident inrelation to the fatal injuries. As in the present case, therefore, the evidence's primaryrelevance was to how the charged injuries came about. The trial Judge had alsoobserved that a secondary purpose of calling the evidence was to show that theappellant had hit the deceased on previous occasions and had a propensity to do so.For that reason, the trial Judge analysed the admissibility of the evidence under s 43of the Act. She concluded that the evidence had probative value to both issues, andthat it did not have an unfairly prejudicial effect.19[58] On appeal, this Court observed that while it was "possible to regard theevidence as propensity evidence" and thus to analyse its admissibility in accordancewith s 43 of the Act, "a more direct route to the admissibility of the evidence was s 7of the Act."20 The Court stated that the evidence was:21[43] plainly relevant in relation to the defence contention that [thedeceased's] fatal injuries were accidental. Evidence of past events in whichshe had been injured would have a tendency to disprove that assertion by thedefence, if the jury were of the view that the appellant had been responsiblefor earlier injuries to [the deceased].[59] The Court observed that in the end, it made no difference to the analysiswhether the admissibility fell to be determined under ss 7 and 8 of the Act, or s 43.[60] We consider the same result follows here. Irrespective of whether theadmissibility of the evidence of the other injuries falls to be determined on the basisof ss 7 and 8 of the Act or through the lens of s 43, the conclusion would be the same.19 R v Broadhurst HC Auckland CRI-2006-057-1845, 24 April 2008.20 R v Broadhurst, above n 19, at [43].21 For completeness, we note that the Court's observation that the evidence was relevant to thecontention the fatal injuries were accidental "if the jury were of the view that the appellant hadbeen responsible for earlier injuries to [the deceased]" is not a qualification necessary in this case.The jury's acceptance that Ms Ritika caused the other injuries is not a prerequisite to evidence ofthose other injuries being relevant to how the charged injuries were caused.The evidence remains relevant for those reasons stated at [53] to [54] above.22 And asthe minority of the Supreme Court in Mahomed observed, there is little or no practicaldifference between the ss 8 and 43 balancing tests.23[61] We also disagree that the evidence of the other injuries was unfairly prejudicial,in terms of the risk that the jury would engage in illegitimate reasoning such that apropensity direction was required. On the contrary, we consider such a directionwould likely have confused the jury and would ultimately have been of no utility toMs Ritika. Our reason for this conclusion lies in the different types of propensityevidence, and the different risks arising.[62] As the minority of the Supreme Court in Mahomed explained, both orthodoxsimilar fact evidence (which we will refer to as "traditional propensity evidence") andbackground or contextual evidence (namely evidence of other alleged misconduct bythe defendant towards the victim) fall within the definition of propensity evidence,irrespective of why the Crown wishes to lead the evidence.24 This is despite the twoforms of evidence being conceptually different and giving rise to differing degrees ofrisk.[63] Traditional propensity evidence relies on concepts of linkage and coincidence,and is typically evidence of other offending (or alleged offending) involving adefendant which has no direct relevance to the events giving rise to the charges inquestion.25 For example, this will typically involve conduct (or alleged conduct) inrelation to a complainant other than that the subject of the index offending. So, forexample, evidence of Ms Ritika behaving in an allegedly violent manner towardsanother very young family member (such as a young niece or nephew) would properlybe characterised as traditional propensity evidence.22 As noted by the minority in Mahomed v R, above n 13, at [76], the s 43(3) and (4) criteria weredrafted with traditional propensity evidence in mind. But even so, all of the s 43(3) factors otherthan those in s 43(3)(d) and (e) favour admissibility in this case.23 At [66]–[67].24 At [61], endorsed in Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116 at [65].25 At [81].[64] The chain of reasoning in relation to traditional propensity evidence carriesrisk, as explained by the minority in Mahomed:26[81] Commonly, propensity evidence relates to misconduct by thedefendant with people other than the victim and in respects which areextraneous to the alleged offending. The jury is thus likely to conclude thatthe defendant is of bad character but the relevance of this to the case at handwill usually be indirect and perhaps of limited weight. The true relevance ofthe evidence may not be apparent to jurors. As noted, the cogency of suchevidence usually turns on ideas about coincidence and probabilities but theassociated principles of probability theory are likely to be unfamiliar to mostjurors. There may also be a risk that the jury may seek to reason directly froma conclusion that the defendant is of bad character to a finding of guilt. Thisrisk will be enhanced if the true and legitimate relevance of the evidence iseither not obvious or not explained to the jury. There is thus usually the doubledanger that a jury, if not assisted by the Judge, will miss the true relevance ofthe evidence and instead reason from it in an unsafe way, perhaps in terms ofgeneral propensity.[65] Given these risks arising from traditional propensity evidence, a propensitydirection will usually be required.27[66] So-called "background" or "contextual" propensity evidence does not usuallygive rise to the same risks. As the minority in Mahomed explained, that is because themisconduct is usually not extraneous to the alleged offending and therefore theevidence will not portray the defendant as being generally of bad character, "[t]hat is,in respects quite independent of the alleged offending against the victim."28 So, forexample, the so-called "van incident" in Mahomed, which was not the subject of acharge in Mr and Mrs Mahomed's trial,29 was not considered by the minority to giverise to any unfair prejudice, given "the evidence revealed nothing discreditable aboutMr and Mrs Mahomed which was not directly germane to the case against them."30[67] Turning to the circumstances in which a propensity direction will be required,the minority in Mahomed said that a direction will be required when the Crown is:3126 Mahomed v R, above n 13. Footnote omitted.27 In the form suggested in Mahomed v R at [95].28 At [57(d)], fn 26.29 Mr and Mrs Mahomed were charged with failing to provide their baby daughter with thenecessaries of life. Mr Mahomed was also charged with murder and causing grievous bodily harm.The "van incident" referred to an incident eight days before the charged events, in which thecouple had apparently left their daughter in a van at a shopping centre for up to three hours on awarm sunny day.30 At [74].31 At [91]–[92].(a) relying on propensity reasoning and in doing so is invokingideas about coincidence or probability; and/or(b) the evidence involves aspersions on the character of theappellant in respects not directly associated with the allegedoffending.As well, a propensity evidence direction should be given where,without it, there is a danger that the jury will not realise the relevanceof the evidence in question or there is some particular risk of unfairprejudice associated with the evidence.[92] On the other hand, and as the corollary of what we have just said,where the evidence in question, although still falling within the Act's"propensity evidence" definition, is not led primarily in reliance oncoincidence or probability reasoning, a specific direction may well notbe required.[68] Returning to the circumstances of this case, the evidence of the other injurieswas not led by the Crown primarily in reliance on concepts of coincidence andprobability reasoning based on events extraneous to the index offending. Rather, andas explained earlier, its primary and direct relevance was to the mechanism by whichthe various injuries to M had been sustained, and to who had caused those injuries.The relevance of the evidence of the other injuries, and particularly to the issue of howthe charged injuries were caused, was also obvious and would have been obvious tothe jury. After all, the entire focus of the medical experts' evidence was on that veryissue. That relevance was also highlighted in the prosecution and defence closingaddresses.32[69] Nor do we consider the evidence involved aspersions on Ms Ritika's characterin respects not directly associated with the alleged offending. Accepting that theevidence carried with it the assertion that Ms Ritika had caused not only the chargedinjuries but also all the other injuries, any resulting aspersion on Ms Ritika's characterwas directly related to the alleged offending for which she was charged, rather than byreference to extraneous, unconnected events.[70] For similar reasons, we also disagree that there was a risk of the jury engagingin illegitimate reasoning, in terms of reasoning from accepting that Ms Ritika causedsome or all of the other injuries to her having also caused the charged injuries. As32 See [34]–[41] above.noted, the defence was a complete denial that the injuries were the result of violence.There was no counter-narrative that if the jury was satisfied the injuries to M werenon-accidental, it was a reasonable possibility that some or all of them had beeninflicted by someone other than Ms Ritika. So, if the jury accepted that Ms Ritika hadcaused, say, the fractures to M's legs, this would have been highly relevant to the jury'sassessment of whether she also inflicted the charged injuries.[71] Accordingly, we do not consider that Ms Ritika was prejudiced by the absenceof a propensity direction.33 To adopt the terminology used by this Court in R vMacDonald, acceptance by the jury that Ms Ritika had caused some or all of the otherinjuries would "necessarily have sunk [her] defence".34 There would therefore havebeen no benefit to Ms Ritika from a propensity direction to this effect.[72] We return then to the Judge's directions and whether, despite a propensitydirection not being required, the directions were nevertheless deficient in failing toexplain why the evidence of the other injuries was before the jury and what use theycould make of it.[73] Mr Cordwell's submissions focused on the Judge's direction set out at [43]above as not adequately addressing the evidence. However, we do not read thatdirection as being intended to address the nature and purpose of the evidence of theother injuries. The direction needs to be read in context. It fell within the broadersection of the Judge's summing up explaining the circumstantial nature of the Crown'scase against Ms Ritika and the three key strands of evidence the Crown relied on.[74] While we agree that it would have been preferable for a more tailored directionabout the nature and purpose of the evidence of the other injuries to have been given,we are satisfied that the Judge's directions overall were sufficiently clear to the juryon how to approach that evidence. The Judge was clear that the Crown's case againstMs Ritika (both as to how the charged injuries came about and who caused them) wascircumstantial. She gave the standard directions on how the jury was to approach33 To the effect of cautioning the jury that the fact the defendant has or might have offended on otheroccasions does not establish guilt on the index offending. Mahomed v R, above n 13, at [95(c)].34 R v MacDonald CA 166/04, 8 April 2005 at [24].circumstantial evidence. The Judge then summarised the strands of the Crown's caseagainst Ms Ritika, including that the first strand was the expert medical evidence ofall of the injuries. For the reasons we have discussed earlier, the relevance of theevidence of the other injuries to the issues arising at trial would have been obvious tothe jury. Accordingly, both the relevance of the evidence and how that evidence wasto be approached as part of a circumstantial case was clear to the jury.[75] This is sufficient to conclude that this ground of appeal does not disclose amiscarriage of justice. For completeness, however, we observe that the medicalevidence was overwhelming that the collection of injuries sustained by M wasnon-accidental, a point accepted by Mr Cordwell on the appeal. Once that fact wasaccepted, and on the evidence before the jury, the inescapable conclusion was that itwas Ms Ritika who had caused those injuries.[76] This ground of appeal must therefore fail.Second ground of appeal — failure to give a lies directionBackground[77] As noted earlier, a key strand of the Crown's case against Ms Ritika was thenature and extent of her (alleged) lies, which the Crown relied on as circumstantialevidence of guilt.[78] The topic of lies was not touched on in any material way in the prosecutor'sopening address. But it is fair to characterise the prosecutor's cross-examination ofMs Ritika as a wholesale attack on her credibility, both in relation to her exculpatorystatements that she did not cause the injuries to M and what the prosecutor put to herwere a series of collateral lies. Ms Ritika was consistent in her evidence that she hadnot lied on any of the matters put to her, and suggested that, for example, her words oractions had been taken out of context.[79] Consistent with the nature of Ms Ritika's cross-examination, the prosecutor'sclosing address focused heavily on what the Crown said were her (and Mr Kumar's)lies. Having addressed a number of the suggested lies, the prosecutor said:But Mr Kumar and Ms Ritika, you might have thought, have lied in variousways both in giving evidence and in making their statements to the police.There was a part in the intercepted conversations Mr Kumar says toMs Ritika how they have told lots of lies. Now I'm not saying: "Look ifyou're not generally truthful then therefore that means you commit crimes."It's not as easy as that. Just because it appears both of these defendants havelied about certain things won't tell you anything unless your view is they liedfor a particular reason.[80] In her closing address, trial counsel for Ms Ritika did not accept that Ms Ritikahad lied on any of the occasions suggested by the prosecution, though nor did she seekto deal with most of the suggested lies head on.35 Nevertheless, Ms Ritika's trialcounsel did urge the jury to consider matters such as Ms Ritika's text messages toMr Kumar on 7 November 2018 in their surrounding context, and the nature ofcommunications between the couple more generally, stating that while some of the"things they speak of may sound rather unusual", this was just the way the coupleengaged with each other, including in "childish" ways. Further, and emphasising thesuggestion that Ms Ritika had been truthful in her evidence generally, trial counselsaid to the jury:Even after that meeting with Dr Raithatha on the 9th of November 2018, whenshe was told that [M's] injuries were non-accidental injury caused by childabuse, she gave a statement to police that afternoon. She said: "the only timethat [Mr Kumar] is with [M] without me is when I go to the toilet. There isno other time. Sagar and Shubham are never alone with [M]. I am alwaysthere."Now, you may think that if there was ever a time to tell lies or at least evendistance herself, then that would have been the time to do so, being told thather daughter had these numerous injuries, but Ms Ritika didn't. In fact, sheclaimed more of the responsibility for being present with [M] than we knowis actually the place (sic). (Emphasis added.)[81] In contrast to Ms Ritika, Mr Kumar accepted that he had lied on two occasions,the first being when he told the police on 22 November 2018 that he had been homeall day on 7 November, and the second being when he told police that he and Ms Ritikanever argued.35 Perhaps realising this would have been counterproductive, in that it would have drawn attentionto what were in some instances clear lies.[82] As noted earlier, the Judge gave a lies direction (in standard terms) in hersumming up in relation to Mr Kumar. There is nothing in the materials before us tosuggest that the Judge discussed with counsel whether a lies direction should also begiven in relation to Ms Ritika. Counsel for Ms Ritika did not request a lies direction.The parties' submissions[83] Mr Cordwell submits that in the circumstances summarised above, a liesdirection in relation to Ms Ritika ought to have been given. While, unlike Mr Kumar,Ms Ritika did not accept she had told any lies, Mr Cordwell emphasises that giving alies direction is not restricted to situations where a defendant accepts they have lied.He further submits that a lies direction was required in this case given the Crown'semphasis on what it said were Ms Ritika's lies, that many of Ms Ritika's statementswere plainly lies (and that this would have been obvious to the jury), and that theCrown was relying on Ms Ritika's lies as circumstantial evidence of her guilt. In thesecircumstances, Mr Cordwell says that "independent balance" was required from theJudge in relation to why Ms Ritika might have lied, if the jury accepted that she had,other than because she was guilty. Mr Cordwell suggests that this ought to haveincluded that cultural reasons might have been a factor, that English was Ms Ritika'ssecond language, and that she plainly struggled to understand some of the questionsput to her.[84] Mr Cordwell also submits that the failure to give a lies direction wasexacerbated by the fact a lies direction was given in relation to Mr Kumar, and that itsterms included that a reason for Mr Kumar's (accepted) lies might be to protectanother party (said to no doubt be seen by the jury as an implicit reference toMs Ritika). Mr Cordwell submits that the imbalance in the Judge's directions wasfurther exacerbated by the fact that the Crown's case was that the defendants told anumber of "joint lies".[85] The Crown, on the other hand, emphasises that despite the Crown's closing, nolies direction was sought on behalf of Ms Ritika, and submits that while that may notbe determinative, it is nevertheless informative. The Crown highlights that unlikeMr Kumar, Ms Ritika did not accept that she had lied, and indeed she firmlymaintained in cross-examination that she had not lied at any time. The Crown alsonotes that, while not addressing the suggested lies in great detail in her closing (whichwas likely to have been a tactical consideration), trial counsel addressed the jury onaspects of Ms Ritika's evidence that might at first blush seem implausible, andendorsed the proposition that she had not lied. The Crown says that in thesecircumstances, a lies direction could well have had the effect of emphasising thatMs Ritika had likely been untruthful and therefore risked being counterproductive toMs Ritika's case.36[86] Finally, the Crown submits that the lies direction given in relation to Mr Kumardid not prejudice Ms Ritika. The Crown highlights that Mr Kumar was entitled towhatever directions the Judge considered appropriate and necessary to ensure his fairtrial rights, and that a material distinguishing feature was his acceptance that he hadlied. The Crown says that Mr Kumar's lies direction was appropriately tailored to thetwo particular lies he accepted he had told, and that the direction that a person mightlie "to protect someone else" forms part of the standard direction and was appropriatein the circumstances. In this context, the Crown says Mr Kumar's lies direction couldnot realistically have given rise to a material miscarriage in relation to Ms Ritika.Lies directions – legal principles[87] Judicial warnings about lies are governed by s 124 of the Act:124 Judicial warnings about lies(1) This section applies if evidence offered in a criminal proceedingsuggests that a defendant has lied either before or during theproceeding.(2) If evidence of a defendant's lie is offered in a criminal proceeding triedwith a jury, the Judge is not obliged to give a specific direction as towhat inference the jury may draw from that evidence.(3) Despite subsection (2), if, in a criminal proceeding tried with a jury, theJudge is of the opinion that the jury may place undue weight onevidence of a defendant's lie, or if the defendant so requests, the Judgemust warn the jury that—(a) the jury must be satisfied before using the evidence that thedefendant did lie; and36 Relying on Lundy v R [2018] NZCA 410 at [319].(b) people lie for various reasons; and(c) the jury should not necessarily conclude that, just because thedefendant lied, the defendant is guilty of the offence for whichthe defendant is being tried.[88] A lies direction is often requested and given when a defendant accepts that heor she has lied (in an out of court statement or in his or her evidence at trial). However,as Mr Cordwell notes, it is clear from the text of s 124(3)(a) that the need to considerand potentially give a lies direction is not confined to such circumstances. A liesdirection will generally be inappropriate, however, where a defendant's evidence is nomore than a denial of the commission of the offence.37[89] Finally, it is clear that as a result of s 124(2) of the Act, the jury is entitled totake a defendant's lie(s) into account as circumstantial evidence of guilt.38Analysis[90] There is no doubt that evidence was offered suggesting that Ms Ritika had lied.As Mr Cordwell accepts, despite Ms Ritika's protestations that she had not lied,aspects of her evidence would no doubt have been seen by the jury as untruthful.Nevertheless, there was no obligation on the Judge to give a lies direction unlessMs Ritika requested one, which she did not, or the Judge was of the opinion that thejury might place undue weight on the evidence of Ms Ritika's lies.[91] It is unfortunate that there was no discussion between the Judge and counselfor Ms Ritika about whether a lies direction ought to be given. But in the particularcircumstances of this case, we do not consider that the absence of a lies direction iscapable of giving rise to a miscarriage of justice.[92] A lies direction would have cautioned the jury that if it was satisfied Ms Ritikahad lied, it should not jump from that to a conclusion that Ms Ritika was guilty, and37 R v Guo [2009] NZCA 612 at [68]; Khairati v R [2017] NZCA 31 at [25]; and Henry v R [2017]NZCA 92 at [32].38 Mann v R [2010] NZCA 68 at [35]; R v Dewar [2008] NZCA 344 at [16]–[17]; and McLaughlinv R [2015] NZCA 339 at [43].that the evidence of Ms Ritika's lies simply formed one aspect of the Crown'scircumstantial case against her. The latter would have been apparent to the jury fromthe Judge's directions on the circumstantial nature of the Crown's case and the threekey strands of that case.39 Further, any residual prejudice from the absence of a liesdirection must be considered in the whole context of the trial, and what can only bedescribed as a very strong Crown case against Ms Ritika. As noted, the medicalevidence was overwhelming that M's injuries were non-accidental. There was nocounter-narrative before the jury that it was possible that someone other thanMs Ritika had caused those injuries.[93] It is also difficult to see how Ms Ritika's position would have been improvedhad a lies direction been given. Giving a lies direction carried with it the risk that itwould be viewed by the jury as an endorsement by the Judge of the Crown's case thatMs Ritika's evidence was not credible. Presumably that is why trial counsel did notrequest a direction. Further, given the range of suggested lies told by Ms Ritika, anylies direction, to be effective, would have needed to cover a range of reasons whyMs Ritika might have told those lies. We have some doubt whether this would haveassisted Ms Ritika rather than prejudiced her. It needs to be borne in mind that theCrown's case was that nearly all of what Ms Ritika had said about the material issuesof fact in support of her denial were untrue.[94] For these reasons, we are satisfied that no miscarriage of justice resulted fromthe fact that a lies direction was not given in relation to Ms Ritika.[95] We are also unpersuaded that the lies direction given in relation to Mr Kumarmaterially prejudiced Ms Ritika. As the Crown notes, Mr Kumar was entitled to anydirections the Judge considered necessary to preserve his fair trial rights. He acceptedthat he had lied on two quite important matters. That a lies direction was given inthose circumstances is not surprising. The lies direction was confined to those twospecific matters. The content of the direction also reflected the standard directiongiven under s 124 of the Act. That one reason why Mr Kumar might have lied was to39 See [45] above.protect another (Ms Ritika) would have been obvious to the jury in any event,irrespective of the Judge's direction.Decision[96] For the reasons given, we do not consider that the grounds of appeal, takentogether or individually, disclose a miscarriage of justice.Result[97] The appeal against conviction is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent