TAUVIRA TAUVIRA V R [2016] NZCA 559

TAUVIRA TAUVIRA V R [2016] NZCA 559 [29 November 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA428/2015[2016] NZCA 559BETWEEN TAUVIRA TAUVIRAAppellantAND THE QUEENRespondentCA512/2015BETWEEN PAUL DESMOND CLOKEAppellantAND THE QUEENRespondentHearing: 6 September 2016Court: Miller, Courtney and Woodhouse JJCounsel: B J Meyer for Appellant TauviraM E Goodwin and S M Kilian for Appellant ClokeI R Murray for RespondentR K Francois for witness FrueanJudgment: 29 November 2016 at 3.30 pmJUDGMENT OF THE COURTA Mr Tauvira's appeal against conviction is dismissed.B Mr Cloke's application for an extension of time to appeal is granted.C Mr Cloke's application to adduce fresh evidence on appeal is declined.D Mr Cloke's appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woodhouse J)[1] The appellants, Tauvira Tauvira and Paul Cloke, together with Cruz Fruean and Thomas Campbell, were convicted following a jury trial at the Auckland District Court before Judge Fraser, each on one charge of injuring with intent to cause grievous bodily harm. Mr Tauvira and Mr Cloke appeal against their convictions.[2] At the hearing of the appeal Mr Tauvira abandoned his appeal. As such, we do not address his appeal further.[3] Mr Cloke's single point on appeal is that there is new evidence fromMr Fruean, which is said to exculpate Mr Cloke. Mr Cloke seeks leave to adduce Mr Fruean's evidence on the appeal together with evidence from himself. Hecontends that Mr Fruean's evidence warrants an order setting aside his convictionand a new trial.Appeal out of time[4] Mr Cloke's appeal was out of time. There was no objection from the Crownto an extension. We grant an extension of time to appeal.Background facts[5] In December 2013 Messrs Cloke, Tauvira, Fruean and Campbell, together with Johnson Taoho and the victim of the assault, Michael Haenga, were the six prisoners in a secure wing at Auckland Prison in Paremoremo. They occupied adjoining cells. They were allowed out of their cells for one hour during themorning and a further hour during the afternoon. During these exercise periods theywere free to move along the landing outside the cells, and in and out of the six cells,but they could not leave the wing and other prisoners could not come in.[6] On 4 December 2013 corrections officers discovered that Mr Haenga had been badly beaten. He was discovered in his cell when officers were locking up theprisoners after the afternoon exercise hour. Mr Haenga's face and scalp wereextensively swollen. He had suffered a number of other injuries as well. Before the afternoon exercise hour Mr Haenga had been seen without injuries.[7] Messrs Cloke, Tauvira, Fruean, Campbell and Taoho were charged with the assault. Mr Taoho was subsequently discharged pursuant to s 147 of the Criminal Procedure Act 2011.1 The Crown case was that the four men were guilty either as principals or as parties under s 66(1) or s 66(2) of the Crimes Act 1961.[8] Mr Haenga did not provide any relevant information to prison officers, declined to be interviewed by police and did not give evidence. The Crown case was based on the following evidence in particular:(a) The fact that Mr Haenga was not injured at the beginning of the exercise hour but was at the end of it.(b) The nature of Mr Haenga's injuries and the fact that the six prisonerswere confined to the wing over the relevant period meant that one or more of the other prisoners must have injured Mr Haenga, other than Mr Taoho, who never went into Mr Haenga's cell, which is where theassault occurred.(c) There was CCTV footage of the whole of the exercise hour. Interaction between and individual actions of the five prisoners other than Mr Haenga indicated that they either assaulted Mr Haenga or were parties to that assault under s 66(1) or s 66(2).(d) There were injuries to Mr Fruean's right ankle and the middle knuckleon his right hand.(e) There were conversations between the prisoners after Mr Haenga was removed from the wing, which are recorded below. Those conversations implicated the five men.1 Mr Taoho failed to appear at the trial when the other four prisoners were convicted. A Crown application to have Mr Taoho tried in his absence was declined.[9] None of the defendants gave statements to police, all five pleaded not guiltyand none gave evidence. Mr Fruean did call his mother who said that he had oldinjuries to his right ankle and the middle knuckle on his hand.The CCTV footage[10] We have watched the relevant part of the CCTV footage and have done so with the aid of a detailed timeline and still photographs of individual prisoners.2[11] The most relevant CCTV footage is from a camera facing down the landing to a security gate. The cell closest to the camera was that of Mr Haenga, cell 30. The door into cell 30 is visible but the interior is not. The activities of any prisoners on the landing are visible.[12] Significant aspects of the CCTV coverage include the following:(a) Mr Haenga returned to his cell about 12 minutes after the exercise period commenced. Seconds later he was followed in by Mr Tauvira and Mr Fruean. Mr Tauvira had been with Mr Cloke immediately before Messrs Tauvira and Fruean went into cell 30.(b) When Messrs Tauvira and Fruean went into cell 30 Mr Taoho was sitting in the landing a little over half-way down the landing towards the security gate, looking back towards cell 30. Mr Cloke walked down the corridor, away from the camera. When he got alongside Mr Taoho, Mr Cloke immediately turned and walked back towards the camera and Mr Taoho got up and walked down to the security gate. Mr Taoho started speaking to a security officer and remained there for almost three minutes.(c) Mr Tauvira came out of Mr Haenga's cell after about a minute.Mr Fruean was in the cell but not observable for over five minutes. It is clear that Mr Haenga was assaulted during that five-minute period. During that period Mr Cloke and Mr Campbell each went into and out2 There were some minor errors in the timeline. None is material.of the cell on two occasions. Mr Cloke went in and out on one occasion very quickly. On the second occasion he was there for two minutes and 17 seconds.(d) There were periods when Mr Cloke remained outside Mr Haenga'scell, either standing or seated, and other periods when Mr Campbellremained outside Mr Haenga's cell, including a period when he wasseated.[13] After Mr Fruean came out of Mr Haenga's cell there was a variety of activityindicating prior complicity between the five men in the assault on Mr Haenga. Two activities of particular significance are the following:(a) About three minutes after Mr Fruean came out of Mr Haenga's cell,Mr Tauvira went in. Just before that Mr Fruean had briefly returnedto Mr Haenga's cell on two occasions. Shortly after Mr Tauvira wentinto the cell, Mr Fruean put a mop and bucket into the cell and walked away. Mr Tauvira came out of the cell a few minutes later and emptied the bucket into the shower area.(b) A minute or so before lock-up, Mr Tauvira stood in the landing as Mr Cloke, then Mr Fruean, and then Mr Campbell walked past him in single file and hugs were exchanged between Mr Tauvira and each of them. Almost immediately after that Mr Taoho hugged Mr Tauvira and then Mr Taoho and Mr Fruean exchanged close handshakes. Moments later Mr Fruean raised his arms in a triumphant gesture.[14] When the prisoners were locked up a corrections officer noticed there was ablood smear on the wall in Mr Haenga's cell. Mr Haenga was found lying on hisbed, "quite bloody" with some sort of clothing wrapped around his swollen head.Mr Haenga was taken for medical attention.The overheard conversations[15] After Mr Haenga was removed a corrections officer was directed to listen to any conversations of the five remaining prisoners. At 3.30 pm, around one-and-a-half hours after lock-up, members of the group were overheard saying"Not guilty, hope the cunt doesn't die, bet he has internal injuries". At 5.35 pmmembers of the group were overheard saying "He knows he fucked up, he knows it's on him", "Only manslaughter if he dies", "Don't pack your shit because that shows you're guilty". The following comments were also overheard:You know I was going to head stop just like, oh I head stomped him sorryand it's like kicking a rugby ball, boom you, fuckin [].Yeah I jumped on the bed, kicked him in the head and then jumped on him [— this comment was followed by laughter].Yeah he was just trying to escape so yeah I put the knee in, explosive, yeah bro those were good knees and then you fucked them up [— this exchange was also followed by laughter].Probably try and do us for attempted murder, what a joke they can't proveanything.[16] At 6.10 pm Mr Fruean was removed from the wing, followed by Mr Tauvira. After this the following comment was made by one of the three remaining prisoners,Messrs Cloke, Campbell and Taoho: "Hey my bro did you see that fella I fuckin wasted him". The speaker must have been Mr Cloke or Mr Campbell because, asearlier noted, Mr Taoho never entered Mr Haenga's cell.The fresh evidence: Affidavits and affirmations of Mr Fruean and Mr Cloke[17] Following conviction and sentence, Mr Fruean and Mr Cloke swore affidavits and affirmations in respect of the appeal. We will summarise the relevant contents of the affidavits and affirmations in the order in which they were sworn.Mr Fruean's first affidavit: 11 November 2015[18] Mr Fruean said: he made the affidavit to provide evidence to assist Mr Cloke; Mr Cloke did not inflict any injuries on Mr Haenga; the injuries were caused by Mr Fruean acting in self-defence; Mr Cloke in fact assisted Mr Haenga by separatingMr Haenga and Mr Fruean, bringing the fight to an end; Mr Cloke then gave assistance to Mr Haenga.[19] Mr Fruean said that Mr Tauvira had arranged to have a fight with Mr Haengaon the landing. Mr Fruean said he followed Mr Tauvira into Mr Haenga's cell butdid not explain why. The essence of his description of what occurred in the cell is asfollows: Mr Haenga mistakenly believed that Mr Fruean was "plotting against himwith Tauvira Tauvira and he resented it"; Mr Haenga pulled out a shank — a piece ofsteel from a wash bucket sharpened at one end — and lunged at Mr Fruean;Mr Fruean was stabbed in the upper right arm; Mr Fruean punched Mr Haenga twicein the head, wrestled Mr Haenga to the floor and punched him once more; at thatpoint Mr Cloke entered the cell, took the shank from Mr Haenga and put it in abottle; Mr Campbell entered the cell and the bottle was given by Mr Cloke toMr Campbell. Mr Fruean said that at this point he was too confused and shaken upto do anything. He just stood in the cell and watched Mr Cloke give first aid toMr Haenga.Mr Cloke's first affirmation: 8 April 2016[20] Mr Cloke said that he did not assault Mr Haenga and only entered Mr Haenga's cell "to put him into the recovery position".[21] He said that Mr Fruean did not provide his affidavit through any influence of Mr Cloke. He said he would not have been able to influence Mr Fruean because Mr Fruean belongs to Black Power "which is a rival association to my association, The Mongrel Mob". He said he did not give evidence for two reasons: firstly that I could not force Mr Fruean to testify and secondly that it is not accepted that someone within an association such as mine and Mr Fruean's would implicate another person of another or their ownassociation.If I had of testified I would have had to have faced the consequences of these actions when I returned to prison, and I believe that this could have put my life at risk.Mr Cloke's second affirmation: 23 August 2016[22] In this affirmation Mr Cloke made a number of statements relating to theincident. He said: he was not aware that Mr Haenga and Mr Tauvira had arranged tohave a fight; he saw an argument developing on the landing between the two ofthem; and he walked down to Mr Haenga's cell and saw him throwing punches atMr Tauvira, who fell on the bed, got up, and ran out of the cell looking terrified.[23] He said that he continued to walk up and down the landing, staying awayfrom the fight because it did not concern him, although he looked in on one occasionand claimed that he saw Mr Haenga holding a shank and fighting with Mr Fruean.He then said:However, soon afterwards I walked past the cell and saw Mr Fruean standing over the victim, who was lying on the ground. Mr Fruean was stomping and kicking his face and holding the shank. I became concerned that Mr Fruean could go further and stab the victim with the shank. I went back to my cell and took off my jersey and track pants, my only external clothes, which I wanted to keep clean.I returned to the victim's cell, went inside and separated Mr Fruean from thevictim, ending the fight. I put the victim in the recovery position on his cellbed, soaked a towel in water from the sink in the cell and put it behind thevictim's head.[24] He said that he took the shank from Mr Fruean, not from Mr Haenga as Mr Fruean had stated. He confirmed that he put it in a bottle and gave it to Mr Campbell, and added that he told Mr Campbell to get rid of it.[25] In this affirmation Mr Cloke said that the reason he did not give evidence at trial was because his counsel advised him that the evidence was circumstantial and was not strong enough. He added that he did not want to "nark" on Mr Fruean,which would cause more problems.Mr Fruean's second affidavit: 5 September 2016[26] Mr Fruean said that there was a mistake in his first affidavit in that it was his left arm that was stabbed by Mr Haenga, not his right arm, but otherwise he confirmed the contents of the first affidavit.[27] He then responded to Mr Cloke's first affirmation. He said he had not beenput under any pressure by Mr Cloke and added that he had not been put under pressure by anyone else to give evidence on this appeal. He said:It is correct that the complainant and I are both patched members of Black Power, and Mr Cloke is a member of the Mongrel Mob. However, this is a personal decision of mine and I am not pressured to give evidence because of any gang connections.Since our sentencing in Auckland, I have not had much to do with my co-accused in this case. While Mr Cloke and I were at the same prison at Paremoremo, we were not always in the same unit. I was also transferred to Waikeria Prison about a month ago.[28] Mr Fruean commented on statements of Mr Cloke in his second affirmationabout the fight. He said, for the first time, that he "witnessed" Mr Tauvira andMr Haenga in a scuffle. He said that Mr Cloke could have been correct whenMr Cloke said that he took the shank from Mr Fruean, rather than from Mr Haengaas Mr Fruean had stated in his first affidavit. But Mr Fruean did not acceptMr Cloke's statement in his second affidavit that he saw Mr Fruean "stomping andkicking" Mr Haenga's face. He confirmed his contention that he acted inself defence.EvaluationPrinciples[29] The applicable principles for the admission of fresh evidence on appeal werestated by the Privy Council in Lundy v R as follows:3The Board considers that the proper basis on which admission of fresh evidence 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, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.3 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].Is Mr Fruean's evidence credible?[30] The facts of this case are not uncommon. A co-defendant declines to makestatements to police or to give evidence, is convicted, and then offers evidence tohelp another. In such circumstances this Court has said:4 this court will examine [the co-defendant's] evidence with real care,being conscious of the risk that a former co-defendant may well giveevidence to assist an appellant safe in the knowledge that he cannot beprosecuted again for the substantive offence or one like it.[31] That is what has happened here. Mr Fruean, having chosen not to give evidence at the trial, now says after his conviction that he is willing to give evidence to assist Mr Cloke. In cross-examination before us it was put to Mr Fruean that one way of looking at it was that, as he was the most heavily implicated on the evidence, he had decided to take responsibility for what happened to try and get Mr Cloke off.Mr Fruean replied:Yeah well, you know I've had a change of heart and I think that it's just notfair that someone else be serving time for something that I committed.That's how I'm looking at it now and that's why I'm here to give evidence.[32] We are satisfied that Mr Fruean's evidence is not credible. His unconvincingexplanation for his willingness now to give evidence is one of the reasons for our conclusion. Other reasons are set out in the following paragraphs.[33] Contrary to what Mr Fruean said in his second affidavit, he has not acted independently in providing the evidence and there is evidence of collusion betweenhis gang and Mr Cloke's. Mr Fruean said in cross-examination that he did not give evidence in his own defence, notwithstanding his suggestion that he has a completedefence, because of his gang's "code of silence". He initially suggested that he has now provided two affidavits because he has had "a change of heart" and he does not "mind doing the time". In re-examination there was the following exchange:Q. Does the code prohibit you guys from giving evidence in Court?A. Um, it does, it does to a certain point, it actually – yes it does.4 R v Saggers [2008] NZCA 364 at [18(c)].Q. Okay. When you say to a certain point can you just explain where the boundary lies?A. Um, I don't really want to get too far into it, but for me to dosomething like I will have to get the okay from people higher thanme to do so. That's the only time that, um, yeah [inaudible ] youcanQ. Right. And do you know whether that code of silence applies to other gangs?A. It does, it applies to every gang.Q. Right.A. It's the number one rule amongst all gangs.[34] Mr Cloke's evidence was to similar effect. In cross-examination he wasreferred to Mr Fruean's evidence about the code of silence and it was put to him thatthere was no way he would have given evidence at the trial whatever his lawyer said. Mr Cloke agreed and said, in effect, that this was on the same basis as had beenstated by Mr Fruean. He further confirmed the need for permission from "higher ranking members in our gangs" to give evidence.A. if they give us the go ahead then that's what happens. [I don't]5make my own choices because there's not only member. There's many gangs. Higher ranking members [inaudible ] that's the wayit is.Q. And you didn't have permission to give evidence by higher rankinggang members did you?A. No.[35] As a matter of policy, courts cannot excuse a failure to give evidence at trial by reasoning that gang culture did not allow it. The natural inference to be drawn is that evidence was withheld at trial and is being offered now to game the justice system. Unless that inference can be rebutted, the evidence is likely to be rejected for want of credibility.[36] Mr Fruean's description of his fight with Mr Haenga is not credible. WhatMr Fruean says is not consistent with what Mr Cloke said and those inconsistenciesare not ones which need to go back before a jury. Mr Fruean said that Mr Cloke took5 The transcript records "inaudible".the shank from Mr Haenga but Mr Cloke said he took it from Mr Fruean. Mr Frueandenied stomping and kicking Mr Haenga, notwithstanding Mr Cloke's clear evidenceand with the latter being consistent with the overheard conversations which are unchallenged.[37] Mr Fruean initially said he was stabbed twice in his right arm. In his second affidavit he said this was a mistake and it was his left arm. Mr Fruean was examined for injuries. There was no evidence of injuries to either arm at trial.[38] Mr Fruean's contention now that he was acting in self defence is not credible.It is contrary to unchallenged evidence from the overheard conversations. It is nowalso contrary to Mr Cloke's evidence that at the beginning in cell 30 there was a scuffle between Mr Tauvira and Mr Haenga. It is also not credible because, if it was true, it would have provided Mr Fruean with a defence. The only explanation now offered as to why he did not rely on this defence is the so-called code of silence and the need for permission from senior gang members. That is not an adequate explanation. No waiver of privilege has been offered to enable the respondent to explore whether this account was given by Mr Fruean to his lawyer before trial. Nor has Mr Fruean appealed his own conviction in spite of his self-defence contention and apparent lifting of the code of silence.[39] Mr Fruean stated in his affidavit that at the end of the fight he was too confused and shaken up to do anything. This account is belied by the clear evidence from the CCTV footage: Mr Fruean came out of the cell in a calm and assured manner. All of his subsequent actions were calm and assured and then, at the end, triumphant. Those are not assessments of the weight of the evidence — matters for a jury. They are assessments of the credibility of the version of events Mr Fruean now seeks to put forward.[40] We earlier noted the evidence from the CCTV footage of Mr Cloke, Mr Fruean and Mr Campbell successively exchanging hugs with Mr Tauvira. When cross-examined on this Mr Fruean was evasive and then asserted that this did not occur. He was equally evasive when questioned about the evidence that he put abucket and mop into cell 30 for Mr Tauvira to clean up. He asserted that he had no recollection of this. His evasiveness is captured in the following cross-examination:Q. I would suggest to you that we can see after the attack on Mr Haenga you essentially strutting around the landing.A. Strutting?Q. Yeah.A. What do you mean by strutting? Like just walking?Q. Well I suggest it's not walking around like you've just been in aterrifying near-death self-defence type scenario, but like you've justtaken someone out. Is that how you were behaving?A. I don't think so. Why would I be behaving like that, when I'd justgone through a – yeah, a life threatening situation?[41] Mr Fruean was unable to provide any convincing answer to questions put to him about the overheard conversations; both the ones when he was still in the prison wing and those after he had gone but which described the fight in which he admits he was involved.[42] Mr Fruean does not provide any credible evidence raising a reasonable doubt that Mr Cloke, together with Mr Campbell and Mr Tauvira, was at least involved as a party in the assault on Mr Haenga, if not one of the prisoners who did assault Mr Haenga. The second prisoner (other than Mr Fruean), who plainly stated after the assault that he assaulted Mr Haenga, was Mr Campbell or Mr Cloke. Mr Fruean's account of sole responsibility cannot be reconciled with thisuncontradicted evidence.Is Mr Cloke's affirmation evidence credible?[43] As with Mr Fruean's evidence, the natural inference to be drawn from theoffering of evidence at this stage is that it is part of an attempt to game the justicesystem. That inference also has not been rebutted by Mr Cloke's evidence.[44] Mr Cloke's affirmations are self-serving and carefully calculated. His noticeof appeal is dated 31 July 2015. In it he says there is "fresh evidence from one of theco-accused who has now admitted to the assault". Mr Cloke, directly or throughother gang members, must have communicated with Mr Fruean because Mr Fruean'sfirst affidavit was not sworn until 11 November 2015. When that first affidavit came in there was no evidence from Mr Cloke. The affirmation evidence from Mr Cloke with any detail did not come until his second affirmation of August 2016, some 10 months later. The description Mr Cloke then gave of his own actions in giving aid toMr Haenga is almost a mirror image of the description given by Mr Fruean. Theconsistency nevertheless fell away in cross-examination when Mr Cloke claimed thathe had given mouth-to-mouth resuscitation to Mr Haenga and "he came back to life"— an act of significance which neither Mr Fruean nor Mr Cloke had earliermentioned.[45] Mr Cloke's essential contentions — that initially he was simply an onlooker and then intervened solely to prevent more injury to Mr Haenga and to render first aid — are not credible when assessed against what can be observed from the CCTV footage and the content of the overheard conversations. It is also not plausible that Mr Cloke, a Mongrel Mob member, would intervene in a fight between two Black Power members and then render first aid to one of them if Mr Cloke was not part of an assault that had been planned in advance between the four men who were convicted.[46] There is evidence from Mr Cloke which is demonstrably false. He said that Mr Tauvira ran out of cell 30 looking terrified. The purpose of this evidence presumably was intended to support the original version from Mr Fruean of a violent attack with a shank by Mr Haenga. Mr Tauvira did not run out of cell 30 and he did not look terrified. Mr Cloke was outside the cell. Mr Tauvira walked out, paused, touched his head as he looked towards Mr Cloke, then turned and walked calmly down the landing to the security gate.[47] Before Mr Cloke went into cell 30 for the second time, and remained there for over two minutes, he had first gone into his own cell, taken off his top layer of clothing and then went into cell 30 in his underwear. Mr Cloke's explanation for this — recorded above at [23] — is implausible. He says he was concerned that Mr Fruean would stab Mr Haenga and, in effect, he felt compelled to intervene. He nevertheless walked in a calm way down to his own cell, took off his top layer ofclothing, then walked back in a similarly calm and measured way to cell 30 to prevent Mr Fruean stabbing Mr Haenga.[48] As already indicated, it was either Mr Cloke or Mr Campbell, in the presenceof Mr Taoho, who said that he had "wasted him" — this obviously referred to the assault on Mr Haenga. Mr Cloke was cross-examined on this. His answers were evasive and inconsistent.Is the evidence fresh?[49] Because the evidence of Mr Fruean and Mr Cloke is not credible, it is not strictly necessary to consider whether the evidence is fresh but we will comment briefly on this.[50] Mr Cloke's own evidence is not fresh. Plainly his own contentions as to whathappened was evidence available to him at the time of the trial and which he was free to give. His evidence about his gang's code of silence is not an answer. Therewas some evidence from Mr Cloke about advice from his lawyer but cross-examination made clear that the decision not to give evidence was Mr Cloke'sdecision.[51] Mr Goodwin for Mr Cloke submitted that the evidence is fresh for two reasons. The first is that Mr Fruean, as a co-defendant, could not be compelled byMr Cloke to give evidence.6 The second reason was that, if the trials had beensevered, Mr Fruean could not have been compelled by Mr Cloke to give evidenceunless Mr Fruean waived his privilege against self-incrimination.7[52] Mr Murray, for the Crown, citing this Court's decision in R v Saggers,submitted that the evidence is not fresh because, on the basis of Mr Cloke'saffirmations, he must have been aware of possible evidence that could be given by Mr Fruean. However, there was no application for severance or evidence that6 Mr Goodwin cited R v O'Brien CA348/03, 11 May 2004 at [10]. The statutory provision is s 73 of the Evidence Act 2006.7 R v Craig CA355/03, 17 June 2004 at [46].Mr Fruean had even been approached and asked if he would give evidence.8Mr Murray further submitted that there would be no issue of self-incrimination forMr Fruean if there were separate trials because of Mr Fruean's assertion that he actedin self-defence.[53] In R v Saggers this Court summarised principles derived from earlier cases asfollows:9(a) If a defendant (A) knows that a co-defendant (B) could give evidence favourable to A and therefore wishes to call B at his trial, A should seek severance of his trial from B's.(b) If A elects not to seek severance in those circumstances, he or she cannot be heard to argue on appeal that B's evidence, which is nowavailable, is "fresh".[54] The difficulty for Mr Cloke is that he has not given any evidence in his affirmations, or in cross-examination, that he did not know at the time of his trial that Mr Fruean claimed what he now claims. Furthermore, Mr Cloke's first affirmationtends to suggest that he knew at the time of his trial that Mr Fruean might give evidence favourable to Mr Cloke. Mr Cloke said in his first affirmation:I know that I did not testify in my initial hearing, but the reasons for that was firstly that I could not force Mr Fruean to testify and secondly that it is notaccepted that someone within an association such as mine and Mr Fruean'swould implicate another person or their own association.[55] We are not persuaded that Mr Fruean's evidence is fresh.Is the evidence cogent?[56] As with the issue of freshness, given the conclusion that the evidence is not credible, it is not strictly necessary to consider whether it is cogent — whether it might have affected the guilty verdict against Mr Cloke. But we will also comment briefly on cogency.[57] The issue is to be considered under s 232(2)(c) of the Criminal Procedure Act 2011 — whether a miscarriage of justice has occurred for any reason.8 R v Saggers above n 4, at [18].9 At [18].Section 232(4) defines "miscarriage of justice" in alternative ways. The relevantdefinition, under subs (4)(a), is "any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected". Here, there is no evidence of a material error or irregularity but thecomposite expression "error, irregularity, or occurrence" is to be interpreted andapplied broadly.10 We will assume, without deciding, that the absence of Mr Fruean's evidence for Mr Cloke at the trial was a relevant occurrence.[58] The next question is whether the unavailability of Mr Fruean's evidence at the original trial "has created a real risk that the outcome of the trial was affected". A "real risk" arises if there is a reasonable possibility that a not guilty verdict might have been delivered if the evidence had been before the jury.11 If conviction was inevitable in spite of the occurrence, the appeal should be dismissed.12[59] We are satisfied that Mr Fruean's evidence is not cogent because, even if it was heard by a jury, it would not have affected the guilty verdict against Mr Cloke.[60] Mr Fruean's evidence is that he alone assaulted Mr Haenga and, in addition,he did so in self defence. That evidence might have led the jury to conclude that Mr Cloke did not assault Mr Haenga. But Mr Fruean says nothing to raise a real riskthat Mr Cloke should not have been convicted as a party to the assault carried outdirectly by Mr Fruean and, on the present assumptions, Mr Campbell. Mr Frueandoes not provide any exculpatory explanation for the extent of the observableinteractions between Mr Cloke and the four other prisoners, other than Mr Haenga,which clearly implicate Mr Cloke as a party. These are inculpatory interactions ofMr Cloke with the other four before, during and after the five-minute period whenMr Haenga was injured. Mr Fruean's evidence that he acted in self defence couldnot affect a guilty verdict against Mr Cloke as a party because Mr Cloke would be aparty to an assault committed by two people — the convictions of both of whomstand.10 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [26].11 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J. This test was confirmed as applying to s 232(4)(a) of the Criminal Procedure Act 2011 in Wiley v R, above n 10, at [27].12 Wiley v R, above n 10, at [43]–[44].[61] We note two further matters. Mr Goodwin acknowledged that the jury could reasonably have concluded from the CCTV footage that Mr Cloke was a lookout. That was a responsible acknowledgement relating to one of the specific pieces ofevidence which is simply not called into question by Mr Fruean's evidence. Thesame applies to the clear evidence of the four convicted men congratulating each other after the fight in cell 30. Mr Goodwin was not able to provide any answer to the adverse inference to be drawn from this against Mr Cloke.Result[62] Mr Tauvira's appeal against conviction is dismissed.[63] Mr Cloke is granted an extension of time to appeal. His application toadduce fresh evidence on appeal is declined. Mr Cloke's appeal against convictionis dismissed.Solicitors:Kilian & Associates Ltd, Albany for Appellant ClokeCrown Law Office, Wellington for Respondent