SWAINBANK v R [2021] NZCA 93

SWAINBANK v R [2021] NZCA 93 [26 March 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA295/2019[2021] NZCA 93BETWEEN STEVEN SWAINBANKAppellantAND THE QUEENRespondentHearing: 1 December 2020Court: Goddard, Lang and Hinton JJCounsel: J D Lucas for AppellantZ R Hamill for RespondentJudgment: 26 March 2021 at 10.00 amJUDGMENT OF THE COURTA The application for an extension of time to file the notice of appeal isgranted.B The application for leave to admit Mr Coyle's affidavit as fresh evidenceis declined.C The appeal against conviction is dismissed.____________________________________________________________________Table of contentsPara NoIntroduction [1]Background [4]The trial [10]Evidence at trial [11]Jury questions and s 9 agreement [13]Closing submissions [15]The Judge's summing-up [24]Grounds of appeal [27]Evidence on appeal [32]Evidence in relation to allegations of trial counsel error [32]Further evidence from Mr Coyle in relation to fingerprint [34]Was the jury's verdict unreasonable? [42]The fingerprint evidence [42]Other matters relating to the reasonableness of the verdict [49]Was there a miscarriage of justice? [55]The DVD interview [55]Demeanour of Mr Swainbank at interview [60]Trial counsel issues [66](a) Failure to call Constable Young [68](b) Mr Swainbank's place of residence [71](c) Mr Swainbank's medical condition [78]Absence of additional fingerprint evidence at trial [82]Summary on miscarriage of justice ground [84]Result [85]REASONS OF THE COURT(Given by Goddard J)Introduction[1] The appellant, Mr Swainbank, was convicted of a single charge of burglary inrelation to the theft of a fish finder from a boat outside an Auckland property.1 He wassentenced to four months' community detention.2[2] Mr Swainbank appeals against his conviction. He says the jury's verdict wasunreasonable: the jury could not have been satisfied beyond reasonable doubt that hewas guilty on the basis of the limited evidence connecting him with the offending.He also submits there was a miscarriage of justice for a number of reasons relating tothe way in which his defence was conducted by trial counsel.[3] Mr Swainbank's appeal was filed one day out of time. The delay was minimaland there was no prejudice to the Crown. An extension of time was not opposed.We therefore grant leave to file the appeal out of time.Background[4] At some time between 3 December 2017 and 6 December 2017, a personentered a boat on a trailer parked at the front of the owner's address on Auckland'sNorth Shore and stole a fish finder. In order to steal the fish finder, that person wouldhave had to climb onto the boat, remove an instrument panel covering the fish finderthat was screwed to the boat, cut the wires attached to the fish finder, and remove thefish finder from the boat.[5] A thumbprint was found on the interior lip of the instrument panel that coveredthe fish finder. That thumbprint was identified by the police as matchingMr Swainbank's thumbprint on the police computer system. The address shown forMr Swainbank in the police computer system was a North Shore address less thanone kilometre from the location of the burglary. On 24 January 2018, some six weeks1 Crimes Act 1961, s 231(1)(a).2 R v Swainbank [2019] NZDC 10341.after the burglary took place, Constable Young went to that address, which isMr Swainbank's parents' home. He found Mr Swainbank there and arrested him fortheft of the fish finder.[6] Mr Swainbank was taken to the North Shore police station, where heparticipated in an interview with Constable Young that was recorded onDVD (the DVD interview). Mr Swainbank said he had had a small fishing boat asa teenager, but not since. He had worked on boats some two to three years previouslywhen he was working for a business that supplied and serviced winches.Mr Swainbank told Constable Young that he was not familiar with the victim's boat.From the photograph he was shown he identified the type of boat as a "Buccaneer".He said he had never seen the boat. He had never been on that boat, or any boat likeit. He had not been on any boat in the last two years.[7] Mr Swainbank did however recognise the type of trailer the boat was on asa "Hosking" trailer. Hosking Trailers were customers of the winch business he hadpreviously worked for. He explained in the DVD interview that the work he did inrelation to winches did not involve physically working on Hosking trailers: if theyneeded a winch, he would go to their premises and give them advice or drop off theproduct. He was more involved in sales of winches than servicing. Any servicing ofwinches was done in the winch business's own workshop.[8] In the DVD interview, Mr Swainbank categorically denied any involvement inthe theft of a fish finder from the boat. When he was told that his fingerprint wasfound on the interior of the boat, he repeatedly described that as "impossible".The interview terminated shortly afterwards when Mr Swainbank said he wanted tospeak to a lawyer.[9] Mr Swainbank suffers from spondylolisthesis: a medical condition affectinghis spine. The condition causes him pain and can affect his mobility. At the beginningof the interview Mr Swainbank explained that he had a back injury that caused himpain. At times in the interview he displayed signs of suffering and distress.The trial[10] The trial took place in the Auckland District Court before Judge Ryan anda jury. Mr Swainbank was represented by Ms Caitlin Oxnam and Mr Daniel Beckerof the Public Defence Service (PDS). Mr Swainbank denied the offending. His casewas that the Crown could not prove beyond reasonable doubt that he committed theburglary. Mr Swainbank did not give evidence or elect to call evidence.Evidence at trial[11] The Crown called the owner of the boat, Mr Mitchell. He gave evidence aboutthe boat being parked on his property during the relevant period. On 6 December 2017he noticed that someone had broken in and stolen the fish finder. He said he did notknow Mr Swainbank.[12] The Crown also called the Scene of Crime Officer (SOCO), and a fingerprintexpert, Ms Benedict. Constable Young, the officer who arrested Mr Swainbank, wasnot called as he was overseas at the time. Constable Neves, who had succeededConstable Young as officer in charge of the case, was called in his place. He producedConstable Young's notebook entries and various exhibits including theDVD interview.Jury questions and s 9 agreement[13] In the course of the Crown case the jury asked three questions:(a) How did the police know where to make the arrest?(b) Was there any medical assistance offered or accepted at the time ofarrest or interview?(c) At any point before the interview, was the defendant told what had beenstolen from where?[14] Ms Oxnam suggested to Mr Swainbank that those questions should be dealtwith by way of an agreement under s 9 of the Evidence Act 2006 (s 9 agreement).She and the Crown prosecutor drafted a s 9 agreement to respond to those threequestions. Mr Swainbank signed the s 9 agreement. That agreement recorded that:(a) The previous officer in charge was not available to give evidence.He made entries in his notebook dated 24 January 2018.(b) The notebook recorded Mr Swainbank's address as the North Shoreaddress. Police have access to a computer database that containsinformation, including addresses, about "all sorts of individuals fromall walks of life who may have interacted with the Police in the past".Mr Swainbank had never been arrested for burglary, theft or any kindof dishonesty offending.(c) The officer in charge's notebook recorded notes about Mr Swainbankcomplaining of pain. Those notes were set out in the s 9 agreement.(d) The notebook recorded that Mr Swainbank was arrested for the theft ofa fish finder. He was given a full caution stating his rights. During therecorded interview, Mr Swainbank was told he was arrested for the theftof a fish finding unit from a North Shore address.Closing submissions[15] In closing, the Crown emphasised three points that they submitted wouldsatisfy the jury that Mr Swainbank had committed the burglary. First, the presence ofhis thumbprint on the inside of the panel that had been removed to accessthe fish finder. The Crown described this as "compelling evidence that tells us[Mr Swainbank] was on the boat". The Crown said it was "hard to imagine a moreincriminating spot to find it, on the inside of the panel that we know the burglar musthave opened to get access to this fish finder". Second, the Crown said Mr Swainbankclearly knew about boats, based on what he said in his DVD interview. Third,the Crown suggested Mr Swainbank had the opportunity to commit this offence, basedon the fact that he was arrested at an address 700 metres from the victim's home, whichwas recorded in the Constable's notebook as his address. The Crown submitted thatthe fact that he was so close was important, because it gave him the opportunity to bethe burglar. He must know the area and "maybe he's seen the boat parked. We'veseen how it's just by the road, visible, and he's seen it and seen an opportunity."[16] The Crown closed on the basis that Mr Swainbank had not offered anyplausible innocent explanation in the DVD interview for how his fingerprint came tobe on the interior of the panel. The only realistic explanation for how his print gotthere was because he was the burglar. The statements he made in the interview aboutworking in the winch business did not provide a plausible explanation for the presenceof his thumbprint on the inside of the panel, in the light of his statements about neverhaving been on a boat like this, and not working on Hosking trailers.[17] The Crown also anticipated an argument that Mr Swainbank could not accessthe boat because of his medical condition. Counsel referred to the owner's evidencethat it was easy enough to get onto the boat and noted that Mr Swainbank plainly couldwalk as the jury had seen him do so in the DVD interview. There was no evidence hecould not get onto the boat and the fingerprint indicated that he did. The jury had notheard from any expert about any medical condition that would stop him getting intothe boat.[18] Ms Oxnam's closing on behalf of Mr Swainbank focussed on the limitedevidence against him: "[o]ne fingerprint that's all. That's all the Crown case hangson. There is no other evidence against Mr Swainbank. One fingerprint is simply notenough." She submitted that it was perfectly reasonable that Mr Swainbank'sthumbprint was innocently left on the boat. The Crown had not proven its case beyondreasonable doubt.[19] Ms Oxnam referred to evidence from the boat owner and the SOC Officerabout accessing the boat. She referred to the SOC Officer's evidence about dustingthe interior and exterior of the unit for prints. He had not dusted the side of the boat,where it could have been accessed. Only one fingerprint was recovered from the boat.Ms Oxnam said there were obvious areas on the boat that could have beenfingerprinted but were not. She was critical of the overall adequacy of the policeinvestigation.[20] Ms Oxnam emphasised that Ms Benedict, the fingerprint expert called by theCrown, had accepted that there is no way of determining the age of a fingerprint orwhen it was left. Environmental factors could determine the length of timea fingerprint remains on a surface. Ms Benedict had also accepted that the inside ofthe unit would not have been exposed to environmental factors as much as the outsideof the unit. Ms Oxnam submitted that the jury could not be certain when thefingerprint was left, in circumstances where the expert could not be certain.[21] Ms Oxnam also emphasised that the owner had confirmed that the boat wasserviced at the Fish City boat yard on Rosedale Road once a year. The owner droppedoff the boat and did not see who got on the boat during that service. Mr Swainbankhad worked around boats, serviced boat parts, worked with winches, and was linkedto Hosking Trailers, which is based near Rosedale Road. It was possible thatMr Swainbank and this boat, more specifically the relevant panel, had crossed pathsat some point over the years on Rosedale Road where the boat was regularly serviced.[22] Ms Oxnam noted that the SOC Officer did not know if the address at whichMr Swainbank was arrested was his normal residential address.[23] Ms Oxnam referred at some length to Mr Swainbank's DVD interview, wherehe talked about his back injury. At that interview he was visibly in distress because ofhis back injury.The Judge's summing-up[24] In her summing-up, Judge Ryan referred to Mr Swainbank living nearby"no more than nine to 12 minutes' walk away". She referred to the Crown'ssubmission that this meant Mr Swainbank had the opportunity to commit the burglary.The Judge referred to the evidence of Ms Benedict about fingerprints, and theexplanations that Mr Swainbank had given in the DVD interview about hisinvolvement with winches for fishing boats.[25] The Judge referred to the defence submission that the only evidence linkingMr Swainbank to the boat was a single fingerprint which could have been there fora very long time. She noted the submission that the police investigation wasinadequate: they "didn't search the house, they didn't make inquiries, they didn'tsearch his person, they didn't go chasing around pawn shops in the North Shore.They didn't do a full job ".[26] The Judge also referred to the back pain that Mr Swainbank was clearlysuffering from at the time of the DVD interview, and the uncertainty that created aboutwhether he could get into the boat. She noted that the defence said there could be allsorts of innocent explanations as to how the fingerprint got there: "it's only one pieceof evidence and you can't rule out an alternative possibility that there's an innocentreason for Mr Swainbank's fingerprint coming to the underside of that panel on thatboat especially when the expert from the Crown said that fingerprints can be ina position for a long time".Grounds of appeal[27] Mr Swainbank's appeal is brought under s 232 of the Criminal Procedure Act2011. The appeal must be allowed if this Court is satisfied that:(a) having regard to the evidence, the jury's verdict was unreasonable; or(b) a miscarriage of justice has occurred for any reason.[28] A jury's verdict is unreasonable if the jury could not have been reasonablysatisfied to the requisite standard that the appellant was guilty.3[29] A miscarriage of justice is any error, irregularity, or occurrence in or in relationto or affecting the trial that created a real risk that the outcome of the trial was affected,or that resulted in an unfair trial or a trial that was a nullity.4[30] Mr Swainbank's principal ground of appeal is that the jury's verdict wasunreasonable: they could not have been satisfied to the required standard that he wasguilty on the basis of the single thumbprint found on the instrument panel.3 Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [17].4 Criminal Procedure Act 2011, s 232(4).[31] In the alternative, Mr Swainbank submits that there was a miscarriage of justicefor the following reasons:(a) The DVD interview was inadmissible as it resulted from an unlawfularrest.(b) The trial Judge should have given a direction on Mr Swainbank'sdemeanour in the DVD interview.(c) Trial counsel erred by not leading evidence that Mr Swainbank was notresiding at the address at which he was arrested, which was his parents'address.(d) Trial counsel erred by failing to call expert evidence in relation tofingerprints.(e) Trial counsel erred in not requiring Constable Young, the arrestingofficer, to attend the trial and be cross-examined.(f) Trial counsel erred in allowing into evidence the s 9 agreement, whichdid not refer to Mr Swainbank's medical issues or to his residentialaddress.Evidence on appealEvidence in relation to allegations of trial counsel error[32] Mr Swainbank gave evidence about a number of respects in which he wasdissatisfied with the way in which his defence was conducted. He was cross-examinedon his affidavit. We will refer to his evidence as relevant below.[33] Ms Oxnam also gave evidence in relation to the conduct of Mr Swainbank'sdefence at trial. She was cross-examined. Ms Oxnam's evidence was supported bydetailed records of the instructions that Mr Swainbank gave in relation to the trial, andhis decision not to give evidence. She also explained in some detail the manner inwhich she discussed the s 9 agreement with Mr Swainbank and obtained hisinstructions to agree to that agreement. We refer to her evidence where relevant below.Further evidence from Mr Coyle in relation to fingerprint[34] Mr Swainbank sought leave to admit further evidence on appeal: an affidavitfrom Mr Thomas Coyle, a fingerprint expert and scene of crime specialist.[35] The test for whether to admit evidence on appeal is well established.The overriding test is that new evidence should be admitted if the interests of justicerequire it. The correct approach was summarised by the Privy Council in Lundy v Ras follows:5120. The Board considers that the proper basis on which admission of freshevidence should be decided is by the application of a sequential series of tests.If the evidence is not credible, it should not be admitted. If it is credible, thequestion then arises whether it is fresh in the sense that it is evidence whichcould not have been obtained for the trial with reasonable diligence. If theevidence is both credible and fresh, it should generally be admitted unless thecourt is satisfied at that stage that, if admitted, it would have no effect on thesafety of the conviction. If the evidence is credible but not fresh, the courtshould assess its strength and its potential impact on the safety of theconviction. If it considers that there is a risk of a miscarriage of justice if theevidence is excluded, it should be admitted, notwithstanding that the evidenceis not fresh.[36] The Privy Council observed that the requirement that evidence is fresh can beof less critical importance in cases involving scientific evidence. But the samesequential test should be applied to all species of new evidence, including scientificevidence and evidence that was not led at trial due to error of counsel.6[37] Mr Coyle reviewed the evidence linking Mr Swainbank to the burglary.He commented at some length on the process followed to match the thumbprint foundat the scene of the crime. However, he accepted that it matched Mr Swainbank's leftthumbprint.[38] Mr Coyle said that he would expect that there would be other fingerprintslocated around the boat, especially within the cabin, either from the owner or another5 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].6 At [121]–[126].person who may have been on the boat. He emphasised that in his view, it was unlikelythat the panel that contained the fish finder on the boat would have been opened withjust a thumb, without the support of other fingers. There would generally be:(a) some indication of finger marks on the inside surface with thethumbprint on the outside area of the panel, which would be consistentwith someone pulling the panel away from the fixture; and(b) prints on the outside surface of the panel. This was especially sobecause there were no glove marks or other marks noted during theexamination.[39] Mr Coyle explained that it is impossible to age fingerprints, and thatfingerprints can remain for extended periods of time — months or years — in locationswhere they are undisturbed.[40] Mr Coyle considered that it may have been possible for Mr Swainbank to leavehis thumbprint on the inside surface of the panel at some time in the past.In cross-examination Mr Coyle accepted that the presence of the thumbprint wasconsistent with the hypothesis that it had been placed there during the burglary, butexpressed the view that this was a "more unlikely hypothesis" than that it was theresult of legitimate contact with the panel, whether on the boat or off the boat.[41] In this case, Mr Coyle's evidence is credible. But it is not fresh. This Courtmust therefore assess its strength and its potential impact on the safety of theconviction. If there is a risk of a miscarriage of justice if the evidence is excluded, itshould be admitted. We return to this below.Was the jury's verdict unreasonable?The fingerprint evidence[42] We accept the submission of Mr Lucas, counsel for Mr Swainbank, that theonly evidence directly linking Mr Swainbank to the burglary was the thumbprint onthe inside of the instrument panel. But we consider that it was open to the jury toconclude that the only reasonable explanation for the presence of the thumbprint inthat location was that it had been placed there during the burglary, whichMr Swainbank committed.[43] Other hypotheses were available. As counsel for Mr Swainbank emphasisedin closing at trial, and as the Judge reiterated, it was not possible to say whenthe fingerprint had been deposited on the inside of the panel. That could have occurredat a much earlier time. But in the DVD interview, Mr Swainbank had ruled out anyprior contact with that boat. So the jury needed to consider whether Mr Swainbank'sprevious involvement in working with winches might have resulted in contact with thepanel at a time when it had been removed from the boat. It was open to the jury toconclude that this was a speculative possibility that did not give rise to a reasonabledoubt.[44] Mr Lucas submits that it was not incumbent on Mr Swainbank to show why hemight have an innocent explanation for his fingerprint on the panel. That wouldreverse the onus of proof. We agree. But we do not accept his further submission thatit was for the Crown to show that the only explanation available would be that he hadleft his fingerprint when he had taken the fish finder. It was open to the jury to convictMr Swainbank if they considered that the other available explanations were sospeculative and remote that they did not give rise to a reasonable doubt.[45] We do not consider that Mr Coyle's evidence takes matters any further. It wasacknowledged at trial that the thumbprint could have been left on the panel at sometime in the past, and that there was no way to age the print.[46] Nor, in the absence of any reasonable theory about how Mr Swainbank'sthumbprint was placed on the inside of the panel, can any assistance be had fromMr Coyle's analysis of the difficulty of opening the instrument panel without leavingother fingerprints on the outside of the panel. The short point remains that someoneremoved the instrument panel without leaving either fingerprints or identifiable glovemarks on the outside of the panel. It must therefore have been possible to do so.And the burglar must have done so. That effectively takes matters back full circle tothe presence of Mr Swainbank's thumbprint on the inside of the instrument panel.[47] In these circumstances, we consider that Mr Coyle's evidence adds little ornothing to the evidence at trial. It has no potential impact on the safety ofthe conviction. There is no risk of a miscarriage of justice if the evidence is excluded.[48] We therefore decline to admit Mr Coyle's evidence.Other matters relating to the reasonableness of the verdict[49] Mr Lucas referred in this context to the Crown's submission in closing that theappellant was arrested nearby, and the Judge's comment in her summing-up thatMr Swainbank lived at the address where he was arrested. Mr Lucas says that wasincorrect and overstated the case: Mr Swainbank was not living at that address at thetime and was linked to it only because it was his parents' address. He lived elsewhere,an issue explored in more detail below. Mr Lucas submitted that this overstatementmay have enhanced the Crown case unfairly.[50] We see nothing in this point. The address was plainly one to whichMr Swainbank had access, and at which he was present from time to time. It is in ourview immaterial whether Mr Swainbank lived at the address or visited it regularly.[51] Mr Lucas also submitted that the Crown's case against Mr Swainbank was"highly unlikely" having regard to:(a) the inadequacy of the evidence against Mr Swainbank;(b) the implausibility of Mr Swainbank leaving just the one thumbprint onthe panel but no other marks; and(c) the absence of any evidence about disposal of the fish finder.The police investigation had been deficient. They had not made anyinquiries about the whereabouts of the fish finder or its disposal.[52] He submitted that the Crown had not disproved the possibility thatMr Swainbank may have touched the panel at some time in the past when he wasassociated with the winch business that dealt with Hosking Trailers.[53] We consider it was open to the jury to find Mr Swainbank guilty on the basisof the evidence at trial. In particular, it was open to the jury to conclude that the onlyreasonable explanation available for the presence of Mr Swainbank's thumbprint onthe inside of the instrument panel, having regard to his statements in theDVD interview, was that he had committed the burglary.[54] We do not therefore accept the argument that the jury's verdict wasunreasonable.Was there a miscarriage of justice?The DVD interview[55] Mr Lucas submitted that the DVD interview was inadmissible because itresulted from Constable Young's arrest of Mr Swainbank, which was unlawful.He submitted that Constable Young did not have power to arrest Mr Swainbankbecause the fingerprint match did not provide good cause to suspect thatMr Swainbank had committed an offence justifying an arrest.[56] In support of this submission, Mr Lucas referred to the police instructions oninvestigating burglary and allied offences, which set out good practice as to how toinvestigate such offences. Those instructions outline what a police officer should dowhen they have a suspect. The instructions suggest that where the police have someevidence, such as a fingerprint hit, the police should enter a "wanted to interview"request into the police computer system. By contrast, the instructions provide that itis only where there is "evidential sufficiency" that a "wanted to arrest" alert can be putinto the police computer system. Mr Lucas submitted that it is clear that the policeinstructions recognise that a fingerprint hit, without more, is insufficient to justifyarresting a person for a burglary.[57] We do not accept this argument. The police instructions are general guidelines,not a code. They do not deal with every conceivable scenario. Nor do they have theforce of law.[58] In this case, Mr Swainbank's thumbprint was found in a location that was notnormally exposed: the interior of an instrument panel that was normally screwed shut,but had been opened by the burglar to enable them to access the fish finder. In thosecircumstances, we consider that Constable Young plainly did have good cause tosuspect that Mr Swainbank had committed the burglary. There is no basis forsuggesting that the arrest was inconsistent with the guidelines. Still less is there anybasis for suggesting that the arrest was unlawful.[59] We also accept the submission of Ms Hamill for the Crown that even if thearrest had been unlawful, the interview would be admissible. Mr Swainbank gave theinterview willingly, after receipt of advice of his rights under the New Zealand Bill ofRights Act 1990. As the Supreme Court explained in R v Chetty, proof of a causativelink between impugned police conduct and the making of a statement "is an essentialelement of the admissibility inquiry at the threshold stage".7 The arrest providedpolice with an opportunity to interview the appellant. But the interview was givenwillingly in circumstances where Mr Swainbank was free to decline to be interviewed,and eventually did decide to decline to be interviewed further.8Demeanour of Mr Swainbank at interview[60] Mr Lucas submits that the Judge should have given a demeanour direction inrelation to Mr Swainbank's demeanour in the DVD interview. He submitted thatthe jury were obviously interested in his demeanour at that interview, as they had askeda question about whether Mr Swainbank had medical assistance at that time. Mr Lucasinvited us to draw the inference that that question was asked because the jury wantedto know whether Mr Swainbank reacted as he did in the interview because of medicalissues, or because of a guilty mind.[61] The Crown had submitted in closing that Mr Swainbank was lying in hisDVD interview. In her summing-up, the Judge referred to Mr Swainbank's behaviourduring the interview when discussing sympathy and prejudice. The Judge gave7 R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 at [46]–[47], quoting Boskell v R[2014] NZCA 497 at [9].8 See also Winders v R [2016] NZCA 350 at [48]–[58].an orthodox direction on the need to disregard any feelings of sympathy or prejudice.She added, by way of example, the following:[14] You may also feel prejudiced towards the police, for example, youmight think they could have been kinder to Mr Swainbank when he wasinterviewed. That of course doesn't help you determine whether or not hecommitted the burglary that the Crown says he did. You may feel sympathytoward Mr Swainbank because he has back problems and was clearly indistress or pain during his police interview. On the other hand, you may feelprejudice towards Mr Swainbank if you consider he was playing to the gallerya little about his back problems which became particularly acute once thefingerprint evidence was put to him.[62] Mr Lucas acknowledged that there is no general rule that a demeanourdirection is required. However in this case, he said, where the Crown had suggestedthat Mr Swainbank was lying and the Judge had referred to Mr Swainbank'sdemeanour in the DVD interview, a warning should have been given to the jury thatany conclusions that they came to when observing demeanour or body language arelikely to be misleading when determining credibility and are better avoided.9[63] A demeanour warning is usually given in relation to the manner in whicha witness conducts themselves in the witness box (for example: manner, bearing,behaviour, delivery and inflection), and the relevance of that conduct in assessing theircredibility and reliability. That issue did not arise in the present case, as Mr Swainbankdid not give evidence. But the DVD interview was in evidence and the jury wereinvited to consider the way in which Mr Swainbank responded to the questions put tohim, in particular, when he was advised that his fingerprint had been found inside theinstrument panel.[64] However, we do not consider that the passage from the Judge's summing-upset out at [61] above puts in issue Mr Swainbank's demeanour at the DVD interview.The reference to his response to the fingerprint evidence was made in the context ofa warning not to be influenced by prejudice or sympathy. As the Supreme Court saidin Taniwha v R, in deciding whether a demeanour warning is required, the keyconsideration is "whether there is a real risk that witness demeanour will featureillegitimately in the jury's assessment of witness veracity or reliability".109 Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116 at [46].10 At [43].[65] This was not a case that turned on Mr Swainbank's demeanour. Rather, theCrown case focussed on the absence of any reasonable alternative explanation for thepresence of Mr Swainbank's fingerprint on the panel. The Crown relied on the contentof the remarks made by Mr Swainbank in the interview — in particular, that he hadnever been on such a boat — rather than his demeanour at that interview. A directionon this point was not necessary.Trial counsel issues[66] Mr Swainbank alleged that trial counsel failed to follow instructions and failedto properly put the defence in a number of respects by:(a) Not requiring Constable Young to be called as a witness. This meantthat Constable Young could not be cross-examined on thecircumstances of the arrest, or on the medical issues that becameapparent at the interview. Nor could he be cross-examined about thelack of investigation of the explanation given by Mr Swainbank in theinterview about how his fingerprint might have ended up on the panel.(b) Failing to place evidence before the jury about Mr Swainbank's addressat the time of the burglary. Mr Swainbank had provided documentationto Ms Oxnam about where he lived. This material was not before theCourt. Mr Lucas submitted that there should have been evidence thathis actual residence was in Ruawai, which is far from where theburglary occurred.(c) Failing to properly put before the jury evidence about Mr Swainbank'smedical issues, which would have assisted the jury in assessing hisability to climb onto the boat to take the fish finder, and his actionsduring the DVD interview.[67] We address each of these in turn.(a) Failure to call Constable Young[68] Mr Swainbank considers that Constable Young should have been called asa witness so that he could be cross-examined. He says he asked Ms Oxnam to ensureConstable Young gave evidence, but she failed to do so.[69] We accept Ms Oxnam's evidence that Mr Swainbank did not tell her that hewanted Constable Young to be called. In any event, Constable Young was notavailable as he was overseas. The matters that Mr Swainbank says should have beenexplored with Constable Young were able to be explored with Constable Neves at trial,with reference to Constable Young's notebook entries and other police records.[70] We do not consider that there was any error on the part of Ms Oxnam in failingto call Constable Young. Nor do we consider that the inability to cross-examineConstable Young was capable of giving rise to a miscarriage of justice.(b) Mr Swainbank's place of residence[71] As we explained at [50] above, Mr Swainbank's argument in relation to hisplace of residence at the time of the burglary had no material bearing on the case beforethe jury, in circumstances where he had access to, and spent time at, his parents'North Shore address. We accept that Mr Swainbank lived in Ruawai at the relevanttime. But he acknowledges that he visited Auckland for medical treatment from timeto time, including in December 2017 when the offending occurred. It was not disputedthat the North Shore address was one to which he had regular access.[72] Nor for that matter, did the material Mr Swainbank provided to Ms Oxnamestablish where he lived at the relevant time. That material showed that the addressthat he says he was living at belonged to his parents, but shed no light on whether hehimself was living there at that time. The jury would not have been assisted by thismaterial, so there was no error in failing to seek to put that material before the jury.[73] Mr Swainbank does not suggest that he should have given evidence in order toinform the jury about his place of residence. There is no suggestion that he wished togive evidence and was denied that right through trial counsel error or otherwise.[74] Indeed the brief of evidence prepared for Mr Swainbank, against the prospectthat he might decide to give evidence, did not refer to his place of residence. We acceptMs Oxnam's evidence that she did not discuss Mr Swainbank's address with him atlength, and that he did not suggest including it in his brief of evidence.[75] The argument that the address information should have been included in thes 9 agreement does not take matters further. Mr Swainbank did not suggest that theaddress should be dealt with in the s 9 agreement, which was discussed with himbefore it was finalised. His address was not relevant to the two questions from thejury that prompted the s 9 agreement. And this information could not have beenincluded in the s 9 agreement without the consent of the Crown: it was not within trialcounsel's control.[76] Mr Lucas did not explain what else trial counsel should have done to ensurethat there was evidence about Mr Swainbank's address before the jury, incircumstances where he did not choose to give evidence (and there is no complaintabout that), and the documents she had been given were not relevant to that question.[77] We do not consider that there was any identifiable error on the part of trialcounsel in relation to the address issue. Nor was this a material issue, which couldgive rise to a miscarriage of justice.(c) Mr Swainbank's medical condition[78] Nor do we consider that there was any miscarriage of justice because the jurydid not hear further evidence about Mr Swainbank's medical condition.Mr Swainbank had briefly explained his medical condition in the DVD interview.Ms Oxnam gave evidence, which we accept, that Mr Swainbank agreed with her thatthe evidence in the DVD interview, including the statements he made about hismedical condition, sufficiently addressed his back injury and its implications for hismobility.[79] As noted above, Mr Swainbank did not give evidence and there is nosuggestion that he wished to do so and was deprived of his right to do so. Mr Lucasdid not identify how evidence about Mr Swainbank's medical condition was to beadduced, if Mr Swainbank did not give evidence, apart from suggesting that suchinformation could have been included in the s 9 agreement. But that could only havebeen done with the Crown's consent. It is difficult to see how the Crown couldproperly have agreed to include additional information about Mr Swainbank's medicalcondition in the s 9 agreement in the absence of any medical report which provideda reliable basis for such information. Nor, for that matter, were we provided with anymedical reports or expert evidence suggesting that the position was materially differentfrom that which Mr Swainbank painted at the interview. In particular, there is nosuggestion that Mr Swainbank was immobile all or most of the time, or physicallyincapable at all times of climbing onto the boat. In those circumstances, it is not clearwhat additional information might properly have been included in the s 9 agreement.[80] It was not suggested that there was any error on the part of Ms Oxnam in failingto explore the possibility of calling evidence from a medical specialist. Nor, as notedabove, was there any evidence before us to suggest that a medical specialist could havegiven any evidence that would have added materially to the information before thejury.[81] In these circumstances, we are not persuaded that there was any error on thepart of trial counsel in connection with evidence about Mr Swainbank's medicalcondition, or that the absence of further evidence about Mr Swainbank's medicalcondition was capable of causing a miscarriage of justice.Absence of additional fingerprint evidence at trial[82] For the sake of completeness, we note that Mr Swainbank's notice of appealcomplained that trial counsel had not called additional fingerprint evidence to respondto the Crown's fingerprint evidence. Ms Oxnam had advised Mr Swainbank that PDSwas not willing to meet the cost of a fingerprint expert, in circumstances where thematch between the fingerprint located on the panel and Mr Swainbank's fingerprinthad been peer reviewed by police fingerprint experts and confirmed by two additionalexperts as well as Ms Benedict. Ms Oxnam advised Mr Swainbank that he could askfor a private legal aid provider, in which case he might be able to obtain funding fora fingerprint expert or meet the cost himself. He declined to pursue either of theseoptions. Subsequently, Mr Swainbank advised Ms Oxnam that a friend had offeredhim the funds necessary to pay for a fingerprint expert, but he had decided not topursue that further.[83] In these circumstances, it is clear that the absence of any further fingerprintevidence was a result of Mr Swainbank's choice, not of anything done or omitted bytrial counsel. And in any event, for the same reasons that we have concluded thatMr Coyle's evidence should not be admitted, we do not consider that there is anyadditional evidence that a fingerprint expert could have given which would have beenmaterial at the trial, in circumstances where it is common ground that the thumbprinton the instrument panel was Mr Swainbank's.Summary on miscarriage of justice ground[84] For the reasons set out above, we have concluded that the various matters thatMr Swainbank identified as giving rise to a miscarriage of justice did not, eitherindividually or taken together, result in a miscarriage of justice at his trial.Result[85] The application for an extension of time to file the notice of appeal is granted.[86] The application for leave to admit Mr Coyle's affidavit as fresh evidence isdeclined.[87] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent