VENOD SKANTHA v R [2021] NZCA 117

VENOD SKANTHA v R [2021] NZCA 117 [14 April 2021]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BYSECTION 204 OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: ALL HIGH COURT ORDERS PROHIBITING PUBLICATION OFIDENTIFYING PARTICULARS OF THE VICTIMS, WITNESSES ANDOTHER PERSONS REMAIN IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA122/2020[2021] NZCA 117BETWEEN VENOD SKANTHAAppellantAND THE QUEENRespondentHearing: 24 November 2020Court: Miller, Cooper and Gilbert JJCounsel: JHM Eaton QC, T A Simmonds and H C Coutts for AppellantR P Bates, R D Smith and S E Trounson for RespondentJudgment: 14 April 2021 at 2.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)TABLE OF CONTENTSIntroduction [1]Narrative facts [8]The trial process [33]Propensity evidence ruled admissible before trial [33]Overview of the evidence led at trial [39]The competing cases [40]The appeal [50]The omission of an accomplice warning for W [57]Admission and treatment of propensity evidence [70]Inclusion of P's evidence [71]Failure to reconsider admissibility of propensity evidence [73]Failure to direct the jury that propensity evidence was relevant only to motive[77]Erroneous direction as to standard and onus of proof [80]Failure to direct the jury on the "main" issue: whether the claims of thepropensity witnesses were true [84](i) The alleged indecent assault of Ms Rush [85](ii) The alleged indecent assaults of other women [89]Undue emphasis given to propensity evidence in summing-up [92]Refusal to admit hearsay evidence of Ms Rush's complaints about W [96]Summing-up: unfairness and lack of balance [105]Defence case as to indecent assault [106]Propensity generally [108]Treatment of inferences [111]References to key players [112]Taking on prosecutor's role [114]The lies direction [116]Demeanour [123]Experts [128]Conclusion [130]Result [131]Introduction[1] Venod Skantha appeals his convictions for the murder of Amber-Rose Rush inDunedin on 2 February 2018, and for threatening to kill four people to secure thesilence of a witness.1[2] In exchanges of Facebook messages with Mr Skantha that began around 7.30that evening, Ms Rush accused him of indecently assaulting her, engaging in sexual1 R v Skantha [2020] NZHC 442. An appeal against the minimum period of imprisonment, 19 years,was abandoned.activity with minors and supplying minors with alcohol. She threatened to go to thePolice and his employer with her allegations. She was aged 16. He was aged 30 andemployed by the Southern District Health Board (DHB) as a doctor. Some monthsearlier he had been given a final warning for misconduct at work.[3] Sometime before 10 pm Ms Rush uploaded to Instagram screenshots of herFacebook exchanges with Mr Skantha. The posts were noticed by W, a young manof 16 years who was a follower of Mr Skantha's and frequently acted as his driver.2W drew the posts to Mr Skantha's attention. There followed a further exchange ofmessages between Mr Skantha and Ms Rush in which he complained about the postsand she expanded on her claims that he was in the habit of preying on young people.She said she would make sure everyone knew about his behaviour, including hisemployer and the Police. She insisted she was serious about it. The exchange of textsended at 11.34 pm.[4] The Crown contends that Mr Skantha moved at once to silence Ms Rush.He picked W up at about 11.40 pm and W drove him to her home. Ms Rush was inher bed when she was murdered at about midnight. Her jugular vein and windpipewere severed with a knife.[5] W was the Crown's principal witness at trial. His account was that Mr Skanthawent into the house and returned about five minutes later with Ms Rush's cellphone,which she had last used at 11.55 pm and, with W's assistance, Mr Skantha set aboutdestroying evidence, beginning with the cellphone and including his bloodstainedclothes. W, who went to the Police two days later, was never charged with any offencerelating to the killing. The Crown alleged rather that to secure W's silence Mr Skanthathreatened to kill W and three members of his family.[6] Mr Skantha's case — he did not give evidence at trial — is that it was W whobecame agitated about the texts and killed Ms Rush out of misplaced loyalty to him.At the same time, he contends, W set about ensuring that Mr Skantha would be accused2 W's name was suppressed by the High Court. We were not asked to revisit that order or any othersuppression order made by the High Court, and have anonymised the names of witnessesaccordingly.of her murder. Mr Skantha maintains that he remained in the car and had no idea whatW was going to do. On appeal, he complains that the trial Judge, Nation J, refused totreat W as an accomplice and refused to admit the hearsay evidence of two witnesseswho would have recounted Ms Rush's complaints that W had previously entered herbedroom late at night.[7] At trial a number of witnesses were called to give evidence of motive.They deposed to unsavoury conduct of the kind that Ms Rush had alleged in herFacebook messages. The evidence of most of these witnesses was ruled admissibleby this Court in a pretrial decision.3 On appeal, Mr Skantha complains that much ofthe evidence actually given at trial was both inadmissible and highly prejudicial, andfurther that the evidence was mishandled by the Judge. He also says that the summing-up lacked balance and in myriad ways was unfair to him.Narrative facts[8] We begin with an account of the facts, which we preface by noting that theCrown does not accept its case rested on the evidence of W. It maintains rather thatits case was substantially circumstantial and the circumstantial evidence pointedoverwhelmingly to Mr Skantha's guilt. Many of the facts are not in dispute; they areconfirmed by texts or social media communications, or location data, or CCTVfootage, or the evidence of eyewitnesses.[9] Mr Skantha took employment as a House Officer with the Southern DHBin 2016, after completing his medical studies in Auckland. He was initially based inInvercargill but moved to Dunedin in May 2017. He was bound by the DHB's Codeof Conduct and Integrity, which required among other things that he must avoidsituations where his behaviour could reflect badly on the DHB or impact on hisworkplace and ensure that his use of alcohol or other substances did not impair hiswork performance or endanger others.[10] On Mr Skantha's account he was drinking excessively in 2017 and was sociallyisolated. He was certainly in the habit of associating with teenagers, some as young3 Skantha v R [2019] NZCA 478 [Pre-trial Appeal].as 14. His flatmate at his Dunedin home, at Forbury Road, described a lot of smallsocial gatherings, often involving alcohol and drugs. W quickly became an acolyte ofMr Skantha, who hosted a birthday party for him in June. W took it upon himself,apparently without telling Mr Skantha, to issue a general invitation on social media,promising free alcohol for 16-year olds. Ms Rush, a friend of W's, attended the partyand met Mr Skantha. Thereafter she and several of her friends hung out regularly withMr Skantha and W. There is a good deal of evidence that Mr Skantha supplied theyoung people with alcohol on a number of occasions, some of which were the subjectof propensity evidence led at trial.[11] Mr Skantha was investigated and disciplined for misconduct at work inJuly 2017. While on sick leave, he came to the hospital with two friends who were tosupport him at a meeting with his educational supervisor. He was told that the meetingwas scheduled for the following day. Rather than leave the hospital he went to a wardwith his friends. He was in an emotional state and smelt of alcohol. On the ward heflushed a patient's cannula, taping it very tightly and dating it with the previous day'sdate. This led to a formal investigation, during which he explained his behaviour bystating that his mother had just passed away. But for that claim, which was false, hewould have been dismissed. Instead he was given a final warning. His actions wereconsidered particularly serious due to an earlier incident where Mr Skantha hadresponded to a nurse's telephone request for advice about a patient while he was onsick leave and accordingly unsupervised, which was considered inappropriate.[12] Late in 2017 Mr Skantha purchased a home at Duxford Crescent in the suburbof Fairfield, taking possession around 15 December. It is not in dispute that about thistime there was a suggestion that Ms Rush and her friend C were planning to move inwith him. It is also agreed that Mr Skantha and Ms Rush had a falling out on 7 January2018 after he offered her money to have sex with him and she refused. He orderedher to leave the house. It was also at Duxford Crescent, likely on 3 January, thatMs Rush was allegedly indecently assaulted by Mr Skantha; she went to sleep on acouch after she had been drinking and claimed that she woke to find her bra off andMr Skantha with his hands down her pants.[13] It does not appear that Ms Rush met Mr Skantha after 7 January, but she didobtain access to a wallet that he had left in his car. On 29 January she texted a friend,M, to say she had Mr Skantha's credit card. She claimed she had spent $300 on thecard so far.[14] The messages between Mr Skantha and Ms Rush on the evening of2 February 2018 began with him asking whether she had spent money on his creditcard. The first set of messages were sent between 7.34 pm and 7.50 pm.Friday 02.02.2018, 7:34 pm Venod Skantha:U there? ImportantFriday 02.02.2018, 7:36 pm Amber Rose:WhatFriday 02.02.2018, 7:37 pm Venod Skantha:Did u use 48 bucks on wish.com?Friday 02.02.2018, 7:38 pm Amber Rose:No haha but I should have 😊 😊Friday 02.02.2018, 7:39 pm Venod Skantha:Hmm. I wonder who didFriday 02.02.2018, 7:41 pm Amber Rose:After what you did you're lucky thats all thathappened lolFriday 02.02.2018, 7:42 pm Venod Skantha:I've always given u stuff. U shouldn't be adrama queen and talk shit about me toeveryonrFriday 02.02.2018, 7:43 pm Amber Rose:Stuff doesn't mean shit when you did that tome, wasnt talking shit hun you should own upto what you did, fkn pervYou're lucky i dont go into the hospital and tellthem how you turn up to work drunk, andsupply minors with alcohol, touch them upwithout consent, grow up vinny you're 30 forfuck sakesFriday 02.02.2018, 7:44 pm Venod Skantha:[15] Ms Rush then uploaded a screenshot of the conversation to Instagram, whereW noticed it and informed Mr Skantha, who messaged Ms Rush at 11.07 pm.The following exchange occurred:Ur horrible amberU know I din mean itFriday 02.02.2018, 7:45 pm Amber Rose:Mate im not horrible, i dont care how muchyou say "I didn't mean it" you fucking did itFriday 02.02.2018, 7:46 pm Amber Rose:own up to it and be an adult not acting like adamn teenagerVenod Skantha:Alright stop itFriday 02.02.2018, 7:50 pm Amber Rose:no, fuck youFriday 02.02.2018, 11:07 pm Venod Skantha:Not cool. What's up with that?Amber Rose:You're just fucking me off now ayeYou act like you done nothingFriday 02.02.2018, 11:08 pm Venod Skantha:Then talk to me. Why be childish about it. Wtf udoing posting things like thatAmber Rose:Because fuck you thats whyFriday 02.02.2018, 11:09 pm Venod Skantha:Don't u have anything better to do?Amber Rose:Yeah actually, take it to the police like i shouldhave in the first placeVenod Skantha:Yea and they guy who broke ur arm all good ay?Friday 02.02.2018, 11:10 pm Venod Skantha:[16] At 11.15 pm Mr Skantha called W and spoke to him for a little more than eightminutes. At the time W was with friends, who deposed that they overheard theconversation, in which Mr Skantha sounded stressed and angry about the Instagrampost. W tried to reassure him, promising that the post could be taken down. He alsotold the friends that the post could be really bad for Mr Skantha's job and remarkedthat he wanted his ashes pressed into vinyl when he died. The oddness of that remarkwas pressed by the defence at trial. W then left to meet Mr Skantha.I don't have time for u. I ignored u like u wanted.U better remove that postFriday 02.02.2018, 11:11 pm Amber Rose:id like everyone to know what a scum bag youare actually so nah (emoji)Venod Skantha:I have my own life to deal withFriday 02.02.2018, 11:12 pm Amber Rose:yeah, supplying minors with alcohol and offeringthem money for sex, what a life to like ayeVenod Skantha:Wtf. Ur the one drinking. Wats that got to dowith mdVenod Skantha:MeFriday 02.02.2018, 11:13 pm Amber Rose:Who was the one supplying it to [A], [M],[B], they're all underage aye vinny. Open yourfucking eyesVenod Skantha:Why din u say anything thenAll high and mighty then. I din make anyonedrinkFriday 02.02.2018, 11:15 pm Amber Rose:Oh dont you worry, i will. And you supplied itbro thats an offence that can be taken to prison.Enjoy your life with KIDS since thats all youseem to do[17] In the meantime, the exchange of messages between Mr Skantha and Ms Rushcontinued:Friday 02.02.2018, 11:16 pm Venod Skantha:What does that have to do with uFriday 02.02.2018, 11:17 pm Amber Rose:YOU'RE PREYING ON YOUNG KIDS VINNY,WHAT THE FUCK IS WRONG WITH YOUYOU'RE 30 AND A DOCTOR FOR FUCKSAKESVenod Skantha:Leave me alone mate. No I don'tAmber Rose:ARE YOU ACTUALLY FUCKED IN THEHEAD?Friday 02.02.2018, 11:18 pm Amber Rose:Btw read up, you're the one contacting me first,imma make sure EVERYONE knows what a sickcunt you are, including your work AND the policeFriday 02.02.2018, 11:19 pm Venod Skantha:Savage matrMateFriday 02.02.2018, 11:21 pm Venod Skantha:So ur serious?Amber Rose:best believe i amVenod Skantha:ThanksFriday 02.02.2018, 11:22 pm Amber Rose:Im doing the world a favor, people like you don'tdeserve to walk freelyFriday 02.02.2018, 11:23 pm Venod Skantha:Ur taking it way out of proportionFriday 02.02.2018, 11:24 pm Amber Rose:Nope im notIt will be seen that Ms Rush was angry and made it plain that she was determined tosee Mr Skantha punished.[18] Mr Skantha and W exchanged calls at 11.36 pm and 11.40 pm. Mr Skanthapicked W up at Glen Road and W drove to Ms Rush's home at Clermiston Avenue.W claimed that Mr Skantha was wearing old, dark clothes, gloves and a beanie, anden route he asked W about the layout of Ms Rush's house. Both men had been to thehouse previously, but W knew it well and he also knew where the front door key washidden. W said he pulled over and drew a plan on the car's dashboard. What hedescribed as the plan was visible in dust on the dashboard and photographs of it werein evidence at trial.[19] What happened when Mr Skantha and W arrived at the house is obviouslycontroversial. W claimed that Mr Skantha left the car, saying he would be about fiveminutes. There was evidence that at 11.54 pm W called a friend, SC, who overheardthe earlier call between Mr Skantha and W. W told SC that he was worried and heFriday 02.02.2018, l1:25 pm Amber Rose:You're clearly to thick to realize shit like that istraumatising especially to me, so a big fuck youfor thatI hope you pay for it and I hope you go to sleep atnight hating yourselfFriday 02.02.2018, l1:30 pm Venod Skantha:Why din we talk about this earlier?Amber Rose:you think i want to talk to you? Clearly fuckingnotFriday 02.02.2018, 11:3l pm Venod Skantha:Better than back stabbingFriday 02.02.2018, 11:32 pm Amber Rose:Back stabbing? BACK STABBING? BITCH AREYOU KIDDING ME?Friday 02.02.2018, 11:34 pm Amber Rose:You knew what you were doing when you did it,for that you deserve everything you're gonna getthought he might be an accomplice to murder. W claimed he made that call whilewaiting for Mr Skantha, who returned carrying a knife and Ms Rush's cellphone,which he proceeded to try to smash. There is evidence that is consistent with anattempt to destroy the phone: at 12.01 am on 3 February it took what appears to be aburst of photos, apparently when being smashed. Mr Skantha's case at trial was thatthe call was part of a "master plan" by W to make it appear that Mr Skantha was theguilty party.[20] On W's account Mr Skantha had him open the passenger door for him andfasten his seatbelt, evidently to avoid leaving trace evidence on the car. Blood spatter,signifying that the blood was fresh, was later found on the inside passenger window.It was Ms Rush's blood. Blood transfer was found on the inside passenger door.It contained mixed DNA of Ms Rush and Mr Skantha. Nothing was found on thedriver's side. It is not in dispute that Mr Skantha was in the passenger seat when thecar left Clermiston Avenue. At trial W was accused of planting the blood on thepassenger side.[21] W drove the car to Blackhead Quarry, where the phone was thrown into aswampy area, and then to Duxford Crescent. W told the Police he arranged to have itdumped there because he knew it could be retrieved.[22] Ms Rush had also been in contact with others that evening, including herboyfriend at the time. They exchanged Snapchat messages in which he discouragedher from going to sort the matter out with Mr Skantha. When she stopped replying tohis messages he was sufficiently worried that he went to her house and knocked onher bedroom window. The time was likely shortly after midnight.[23] On W's account, at Duxford Crescent Mr Skantha told him to clean the car andthe knife. No trace of blood or Ms Rush's DNA was found in the house, or on theknife allegedly used as the murder weapon, a point which Mr Skantha pressed at trial.W also deposed that Mr Skantha changed his clothes and put the clothes he had beenwearing into a plastic bag.[24] In 2016 Mr Skantha formed a relationship with a lawyer resident in Balclutha,Brigid Clinton. The relationship appears to have come to an end by the end of 2017but they maintained contact. He had arranged to come to Balclutha on 2 February tosee her and sign some documents, but he did not respond to a message from her askingthat he confirm he was coming. At 1.10 am the next morning he texted to say he wascoming. She was offended by his failure to respond earlier and said she did not wantto see him, but he showed up at her house between 2.00 and 2.30 am with W. It is notin dispute that Mr Skantha drove to Balclutha, allegedly because W did not have adriver's licence and Mr Skantha was concerned about being stopped by Police.Mr Skantha and W stayed at Ms Clinton's house overnight.[25] Ms Rush's body was found by her mother on the Saturday morning.Bloodstains indicated there had been no struggle, suggesting that she had been swiftlydisabled and bled out on the bed. Transfer stains around a light switch were consistentwith the use of gloves. Subsequent forensic analysis yielded no trace of Mr Skanthaor of W.[26] When everyone at Ms Clinton's house in Balclutha got up on the Saturday,Mr Skantha, who on her evidence had shown up the night before in shorts and a t-shirt,borrowed some clothing from Ms Clinton. On W's account, he was instructed to cleanMr Skantha's shoes but deliberately left blood on them and placed the shoes in thegarage for later discovery by the Police. W also alleged that it was at Balclutha thatMr Skantha threatened to kill him and his family if he told anyone.[27] Later that day Mr Skantha, W and Ms Clinton went to The Warehouse inBalclutha to purchase items for a bonfire, ostensibly because Mr Skantha wanted totoast marshmallows. He bought a terracotta pot and manuka chips. Back atMs Clinton's house he and/or W lit a fire in the pot. Mr Skantha told Ms Clinton thathe was burning his "daggiest" clothes to get the fire going. The items included a jerseyand sweatpants and, on W's account, Ms Rush's driver's licence which had been inher phone case. W or Mr Skantha later tossed the ashes into the garden and filled thepot with potting mix. Nothing of evidential significance was recovered from the potand the ash. A plastic bag placed in a rubbish bin was found to contain traces ofMs Rush's blood.[28] Ms Skantha and W again stayed at Ms Clinton's that night and returned toDunedin on Sunday 3 February. She accompanied them in her own car.[29] In Dunedin Mr Skantha and W went to see Ms Rush's mother, Lisa Mills, whohad asked to speak to them. Ms Mills insisted on meeting them at a motel. That wasdone because the Police were already treating Mr Skantha as a person of interest.The meeting was attended by a plainclothes detective who was introduced as a friendof Ms Mills. No admissions were made. Mr Skantha and Ms Clinton then droppedW off at his home at about 3.00 pm.[30] Once at home W called his family to warn them they were at risk fromMr Skantha, who had killed Ms Rush. That revelation led to W calling the Police.He underwent an interview in which he gave his account of what had happened.We interpolate that the clothing W had been wearing in Balclutha that weekend waslater examined but no traces of human blood or Ms Rush's DNA were found.However, the possibility that he too had changed clothes on the Friday night cannotbe excluded.[31] Mr Skantha tried repeatedly to contact W during the next few hours, withoutsuccess. At 8.20 pm the Police stopped Mr Skantha while he was driving in Dunedinwith Ms Clinton. He was interviewed and arrested.[32] With W's aid Ms Rush's phone was retrieved. Despite the efforts that had beenmade to destroy it, Police were able to access its circuit board and retrieve data andmessages. Mr Skantha's phone was also searched. Text messages and Facebook Chatmessages on her phone had been deleted from his, and it appeared that his Facebookaccount may have been deactivated. Analysis also showed that someone had accessedlocation data on his phone and that its location history was switched off, or recordsdeleted, on 2 and 3 February.The trial processPropensity evidence ruled admissible before trial[33] In its decision of 3 October 2019, this Court ruled on the admissibility ofseveral categories of evidence going to motive or propensity:4(a) The first was evidence that Ms Rush had complained of beingindecently assaulted by Dr Skantha (the complaint evidence). This wasruled admissible.(b) The second was evidence that Mr Skantha had indecently assaultedother young women in similar circumstances (the similar factevidence). This was ruled admissible.(c) The third was evidence that Mr Skantha had offered to pay Ms Rushand other young women money for sex (the solicitation evidence). Thiswas ruled admissible.(d) The fourth category was what Mr Eaton described as classicalpropensity evidence, that Mr Skantha had a propensity to behaveviolently when he did not get his way, and that he often started fightsand assaulted others. The Court accepted that this category would berelevant, and thus admissible, if the defence either contested the Crownproposition that W was afraid of Mr Skantha or contended that W hada general propensity for violence and so was more likely to be thekiller.5 It was ruled provisionally inadmissible. Following that rulingthe defence agreed not to challenge evidence that W feared Mr Skantha.(e) The final category, also classical propensity evidence, was evidence ofMr Skantha threatening to slit a woman's throat with a machete andregularly waving it around. This was ruled admissible due to its4 Pre-trial Appeal, above n 3.5 At [102]–[103].similarity to the facts of Ms Rush's murder, not as general evidence ofMr Skantha's violence.[34] The admissibility of evidence falling into the last of these categories is not nowin issue and we say no more about it. We summarise the Court's reasons for the first,second and third categories because, while Mr Eaton did not argue that the decision of3 October 2019 was wrong, in our opinion he substantially sought to relitigatearguments that were dismissed there. We are prepared to revisit this Court's reasonswhere anything material changed at trial, but to the extent that the argument wentfurther it is properly the subject of an appeal to the Supreme Court.[35] We need not expand on the ruling with respect to the fourth category becausethe evidence was not led at trial, but we do draw attention to the ruling because itprovides context for some of the grounds of appeal, notably the omission of anaccomplice warning.[36] So far as the complaint evidence is concerned, it is noteworthy, having regardto some of the grounds of appeal, that the Crown had initially charged Mr Skanthawith the indecent assault of Ms Rush but Nation J had ruled hearsay evidence of hercomplaint inadmissible so far as it went to the truth of her complaint.6 That ruling wasnot challenged by the Crown on appeal and the charge was withdrawn. The Judgeruled the complaint evidence admissible to show she had made the allegations,reasoning that the evidence was an integral part of the narrative of events and also boreon motive.7 This Court reasoned that motive would be a very important issue at trialand the complaint evidence was probative because there was evidence that Mr Skanthaknew Ms Rush had complained of being indecently assaulted.8 Another witnessdeposed that Ms Rush told her she had been indecently assaulted by Mr Skantha, andthe witness directly asked Mr Skantha if the allegations were true.9 There were alsopassages in his statement to the police indicating that he knew of the allegation before6 Skantha v R [2019] NZHC 519 [High Court decision] at [104].7 At [103]–[104].8 Pre-trial Appeal, above n 3, at [49]–[50].9 At [52].2 February 2018.10 The Court reasoned that the evidence of the witnesses concernedwould not unnecessarily prolong the trial, nor was it unfairly prejudicial.11[37] The similar fact evidence of indecent assaults against other women involvedtwo separate incidents. There was evidence that Mr Skantha indecently assaulted awoman who had passed out on his couch after drinking to excess. She had no memoryof the incident but others witnessed it. The second incident involved a woman whopassed out fully clothed in his bed from drinking too much and awoke to find she wasin her underwear with Mr Skantha touching her breasts and vagina. This Court heldthat this evidence strictly fell within the definition of propensity evidencenotwithstanding that it was being adduced not for a propensity purpose but to provemotive.12 It was relevant because the likely ramifications of Ms Rush taking herallegations to police would have been significantly more serious for Mr Skantha ifthere was evidence of similar conduct toward other young females.13 Ms Rush's threatof exposure was not limited to his behaviour toward her, and it was a reasonableinference that he was very likely to have realised the other incidents would come tolight if she went to the police.14[38] The solicitation evidence involved Ms Rush, who was aged 16 at the time, andother young females. This Court accepted that Mr Skantha would have little to fearfrom either the police or even his employer knowing that he had asked someone tofind him a prostitute.15 But offering to pay for sex is a criminal offence if the offereeis under 18 years of age,16 and evidence that he made offers to younger females,including Ms Rush, was probative of motive. The probative value of the evidence wasrelatively high.17 So too was the risk of unfair prejudice but that could be managed byappropriate jury directions. The addition of the witnesses would not unduly prolongthe trial since there would only be two witnesses giving propensity evidence about10 At [53]–[59].11 At [62].12 At [77], citing Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [60].13 At [78].14 At [79].15 At [83].16 Prostitution Reform Act 2003, s 22.17 Pretrial Appeal, above n 3, at [85].offers to pay money for sex and four giving propensity evidence about indecentassaults.18Overview of the evidence led at trial[39] At trial, which took 17 days, some 70 witnesses were called. Most of thewitnesses contributed to the narrative we have summarised or were involved in thePolice investigation. Four motive and complaint witnesses whose evidence of sexualmatters this Court had ruled admissible were called. One additional witness, P, wascalled to give propensity evidence of a similar kind. Four witnesses deposed toMr Skantha's propensity for violence. W was the principal witness of fact. He gaveevidence over three days and, as Mr Eaton emphasised, showed himself to be invarious ways an unreliable witness who was very prone to forgetfulness when pressed.The defence highlighted parts of his account for which there was no support in theforensic evidence and established that he had tried to sell his story to the media. It wasput to him that he murdered Ms Rush.The competing cases[40] As we have said, the Crown marshalled a substantially circumstantial case forthe jury. It began with the timing of the messages between Mr Skantha and Ms Rush,and the motive that they supplied for him. The Crown contended that the messagesleft Mr Skantha in no doubt that she was going to his employer and the police todisclose behaviour which would likely lead to him losing his job and perhaps tocriminal prosecution. She was already sharing her complaints and had to be silencedimmediately. It was no coincidence that she was dead less than 30 minutes after herlast text message to Mr Skantha.[41] Nor was it a coincidence that the phone she had been using to publish hercomplaints was taken, immediately damaged and thrown into a pond. The Crownemphasised that all messages relating to Ms Rush were deleted from Mr Skantha'sphone and some location data was also missing from that phone.18 At [86].[42] The Crown pointed to evidence that Mr Skantha called W for assistance,having him drive to and from Ms Rush's home and identify the location of herbedroom and clean up afterward. The knife must have been in the car whenMr Skantha picked up W; there was no reason to think the weapon was acquired andcleaned at her house, and the timeline did not allow for a detour to fetch it.[43] The Crown contended that the attack on Ms Rush was focused and her woundsindicated that her attacker knew what was needed to silence her and kill her quickly.Blood was found on the passenger side of the car, where Mr Skantha had been sittingafter the attack, and some of the blood had been fresh. It was Mr Skantha's clothesthat were burned in Balclutha, and it was he who purchased the terracotta pot.Ms Rush's blood was found in the plastic bag and on Mr Skantha's shoes, which hadbeen partially cleaned.[44] The Crown also pointed to lies told by Mr Skantha in his police interview, inwhich he denied that he and W went to the quarry to do anything other than take in aview and denied burning items at Balclutha.[45] The Crown's response to the suggestion that W had killed Ms Rush was that itwas inconceivable that he would kill out of loyalty to Mr Skantha while at the sametime creating evidence which would lead to Mr Skantha's conviction for murder.Rather, the Crown contended, the circumstantial and forensic evidence supported W'saccount. There was no forensic evidence consistent with W having been the killer.[46] The defence case focused on W. Mr Eaton invited the jury to accept that theCrown case depended on W's evidence, which could not be accepted.W's performance in the witness box and in interview showed him to be completelyunreliable. His account of a master plan in which Mr Skantha killed Ms Rush and Wleft a trail of evidence for the Police was absurd and it fell apart in the witness box.Indeed, W had accepted he was a compulsive liar. Counsel pointed to evidence thatin December 2017 W had been interviewed and subsequently charged with sexualoffending against another young woman; he had lied throughout his interview then,only to plead guilty later. Counsel also suggested that the forensic evidence was insome respects inconsistent with W's account, such as an absence of forensic evidenceat Duxford Crescent, and in other respects consistent with W himself being themurderer. The Police investigation had been blinkered from the start; W was at leastan accomplice yet his account had been accepted without question and the Crown stillmaintained he had done nothing wrong. That blinkered approach extended to theforensic scientists, who looked for evidence that supported the Police theory of thecase and did not analyse some evidence, such as (by way of example) the knives anda tea towel in the kitchen at Ms Rush's house. It was illogical that Mr Skantha wouldrespond to Ms Rush's threats by killing her. It was W rather than Mr Skantha whowas upset by her posts, W who feared for Mr Skantha's job, and W who was obsessedwith her.[47] Counsel characterised the propensity evidence as bad character evidence andinvited the jury to find that it should never have been called. He remarked that Crowncounsel had barely touched on this evidence in closing, for good reason; it had noprobative value. It was inconceivable that the evidence of these witnesses wasweighing on Mr Skantha's mind on the night of 2 February 2018. There was nothingsinister in Mr Skantha's relationship with young people and their communicationswith one another showed they were taking advantage of his willingness to providealcohol and let them drink at his place.[48] So far as the complaint evidence was concerned, counsel suggested thatMs Rush's complaint was false, suggesting the evidence of M, who was atMr Skantha's house that night, disproved it; he saw nothing and in evidence hedoubted it had happened. Counsel noted that she continued to associate withMr Skantha after the alleged assault. The similar fact evidence was not credible either.He accepted that Mr Skantha had offered Ms Rush money for sex, but only in jest.The other solicitation evidence should be rejected as implausible, or as too trivial tosupply Mr Skantha with a motive to kill.[49] It is necessary to examine the summing-up and associated rulings in somedetail, but we do so below, when dealing with each of the appeal points.The appeal[50] We list the grounds of appeal in the approximate order that Mr Eaton followedin oral argument. They begin with the argument that the Judge erred by refusing totreat W as an accomplice and warn the jury that his evidence might be unreliable forthat reason.[51] The second concerned the admission of propensity evidence which, counselsubmitted, was inadmissible or proved to have little probative value. Counselsubmitted that the evidence of P (which was not the subject of this Court's earlierdecision) was inadmissible and the admissibility of the remaining evidence ought tohave been revisited by the Judge, who also mishandled the evidence by failing toexplain its relevance and limitations to the jury. This ground of appeal extended to thecomplaint evidence of Ms Rush, there being reasonable doubt in counsel's submissionas to whether she was indecently assaulted at all.[52] The third concerned the lies direction given by the Judge. It was orthodox sofar as it concerned Mr Skantha's account given in interview, but the Judge erred byextended the warning to part of W's evidence.[53] The fourth concerned the Judge's refusal to allow hearsay evidence thatMs Rush had twice complained of W entering her bedroom at night.[54] The fifth was that the summing-up was unbalanced and unfair. Counselsubmitted that the Judge repeatedly assumed that the claims of the propensitywitnesses were true and unfairly elevated the importance of that evidence, that hisinferences direction suggested Mr Skantha was guilty, that he did not fairly put thedefence case including the assertion that Ms Rush was never indecently assaulted, thatthe appellant was always referred to as "Dr Skantha" while the Judge includedforenames when speaking of W and Ms Rush, that the Judge repeatedly emphasisedthe youth of Crown witnesses, and that the Judge offered the jury explanations to rebutdefence contentions. Counsel also submitted the Judge improperly took on the role ofprosecutor and ignored the defence criticisms of one of the expert witnesses.[55] Finally, it was said that the Judge erroneously warned the jury against attachingsignificance to W's demeanour in interview and in the witness box.[56] Counsel acknowledged that this is not an unreasonable verdict case,recognising that the verdict was available to the jury if they accepted W's evidence.We agree. Counsel urged rather that the trial was unfair.19 Alternatively, errors at trialcreated a real risk that the outcome was affected and this Court cannot be sure ofMr Skantha's guilt.20The omission of an accomplice warning for W[57] Section 122 of the Evidence Act 2006 provides so far as relevant:122 Judicial directions about evidence which may be unreliable(1) If, in a criminal proceeding tried with a jury, the Judge is of theopinion that any evidence given in that proceeding that is admissible maynevertheless be unreliable, the Judge may warn the jury of the need for cautionin deciding—(a) whether to accept the evidence:(b) the weight to be given to the evidence.(2) In a criminal proceeding tried with a jury the Judge must considerwhether to give a warning under subsection (1) whenever the followingevidence is given:(c) evidence given by a witness who may have a motive to givefalse evidence that is prejudicial to a defendant:(3) In a criminal proceeding tried with a jury, a party may request theJudge to give a warning under subsection (1) but the Judge need not complywith that request—(a) if the Judge is of the opinion that to do so might unnecessarilyemphasise evidence; or(b) if the Judge is of the opinion that there is any other goodreason not to comply with the request.19 Criminal Procedure Act 2011, s 232(4)(b).20 Criminal Procedure Act, s 232(4)(a); and Haunui v R [2020] NZSC 153 at [67]..[58] The question is whether a reliability warning ought to have been given unders 122(2)(c) to the effect that W may have had a motive to give false evidence againstMr Skantha because he was, on the Crown's case, an accomplice if not a party and hehad not been offered an immunity from prosecution. Mr Eaton made a request unders 122(3), asking that the Judge give such a warning before he delivered his summingup. The Judge declined to do so, giving his reasons in a ruling delivered after thetrial.21[59] We note that the Judge had earlier refused to warn W of the privilege againstself-incrimination when W entered the witness box.22 That ruling obviously affordsMr Skantha no ground of appeal but it supplies context for the Judge's subsequentdecision not to give a reliability warning. Crown counsel stated that it was unlikelythat W could be prosecuted as an accessory after the fact and the Judge accepted that,stating that there was virtually no prospect of W facing prosecution.[60] We note too that in his closing address Mr Eaton told the jury that they mustacquit Mr Skantha if satisfied that W was an accomplice. The Judge directed the juryin his summing-up that Mr Eaton's contention was wrong in law. That direction wasplainly correct and it is not challenged on appeal.[61] In a bench note discussing the reliability warning the Judge dealt with a numberof issues. He began by recounting that the trial had proceeded on the basis that thedefence accepted W was, with reason, fearful of Mr Skantha. For that reason theCrown had not sought to adduce other evidence showing that Mr Skantha had apropensity to react with unusual and disproportionate violence when angry and wasskilled in the use of violence.23 Defence counsel had been careful not to advance thedefence in a way that might result in the Crown being given leave to call that evidence;for example, there was no suggestion to W that he had no reason to fear Mr Skantha.However, in his closing address Mr Eaton had suggested to the jury that if they thoughtW was an accomplice to murder they must acquit Mr Skantha and sought to defend21 R v Skantha HC Dunedin CRI-2018-012-000310, 5 December 2019 (Bench Note 4) at [36]–[43].22 R v Skantha HC Dunedin CRI-2018-012-000310, 11 November 2019 (Minute).23 As discussed above at [33](d).that suggestion by saying that if W was an accomplice the whole dynamic of the trialwould have been different.[62] The Judge reasoned that the trial had accordingly proceeded in a way thatbenefited Mr Skantha but was potentially unfair to W. For that reason he had chosenin his summing-up to draw attention to statements in W's Police interviews in whichhe spoke of being fearful of Mr Skantha. This evidence had not been challenged incross-examination.[63] The Judge then dealt with other criticisms of the summing-up before giving hisreasons for refusing to caution the jury about W's reliability:[40] I did not consider he had a motive to give false evidence. As thedefence had highlighted, the Police had told him at the outset of his interviewthat he was being interviewed as a witness, not a suspect. There was strongindependent circumstantial evidence indicating Dr Skantha was the killer.There was an explanation for the way [W] had assisted Dr Skantha on thenight through the way he feared Dr Skantha, an aspect of his relationship withDr Skantha I knew the defence had accepted.[41] [W] was extensively cross-examined. It could be said that, in somerespects, he did not perform well but, in my assessment, this did not detractfrom his apparent honesty and reliability as to the aspects of his evidencewhich were essential to the Crown case. That evidence was corroborated bycircumstantial evidence independent of him. The potential for [W] to havebeen wrong about matters of detail had been fully exposed and, in a numberof respects, acknowledged by [W]. Inconsistencies in his evidence,vagueness, mistakes, exaggerations or imaginations had been put before thejury through counsel's cross-examination of him.[42] In his closing address, Mr Eaton had forcefully advanced reasons whythe defence suggested [W's] evidence as to the crucial events should berejected entirely. His general credibility was thus in issue. All the issues asto [W's] credibility were thus fully before the jury.[43] On my assessment of his evidence in both the DVD interviews and attrial; in the context of all the evidence that was before the jury, I did notconsider it appropriate to caution the jury in the way Mr Eaton suggested Ishould have done. To do so, would, in my assessment, have been unfair to[W] and unfair to the Crown.[64] On appeal, Mr Eaton submitted that there was a significant body of evidencetending to show that W was the murderer, beginning with his obsession with Ms Rushand extending to his participation in the crime and his many lies about it. In theabsence of an immunity he plainly had an incentive to give false evidence. A reliabilitywarning was essential. Instead the Judge effectively excused W's poor performancein the witness box by suggesting that traumatic events may have caused him toembellish facts, and by discounting W's admission that he was a compulsive liar bynoting that it was a frank admission.[65] The leading authority on s 122 is CT v R,24 though it is important to bear inmind that the Supreme Court was concerned with a complainant giving evidence ofsexual offending that had happened decades earlier, while in this case we areconcerned with an accomplice. Speaking generally of s 122, the Court emphasisedthat judges should bear in mind that "the whole premise of the section is that it is notalways appropriate to leave it to counsel to point out the risks associated withparticular types of evidence" and drew attention to the language of s 122(3)(b), notingthat in the absence of good reason to the contrary a warning should be given when aparty requests it.25[66] It remains the position, however, that while a trial Judge must consider whetherto give a reliability warning, they are not obliged to do so. There are a number of casesin which this Court has held that a warning was not required in all the circumstances.26In B (CA58/2016) v R, the Court recognised that the judicial imprimatur given by awarning can be important but described the decision as discretionary and stated thatthe essential question is whether a warning is likely to assist the jury materially.27The Court referred to an often-cited passage from the judgment of Richardson J inR v Harawira:28In the end the fundamental question must be whether the summing up met thejustice of the particular case. Difficulties will tend to arise where the potentialunreliability of the witness is not obvious for the jury to see. It must berecognised, however, that Judges are not necessarily gifted with special insightinto mental illnesses and human behaviour not shared by jurors. Clearlywhere a warning is proper it need not be conveyed in the language of "danger","warning" and "caution". What is essential in such a case is to bring home tothe jury the need for care in relying on that evidence.(emphasis added)24 CT v R [2014] 1 NZSC 155, [2015] 1 NZLR 465.25 At [50].26 See for example B (CA58/2016) v R [2016] NZCA 432; Reddy v R [2020] NZCA 16; HP v R[2010] NZCA 617; and R v Vo CA282/98, 14 December 1998.27 B (CA58/2016) v R, above n 24, at [59].28 At [59], citing R v Harawira [1989] 2 NZLR 714 (CA) at 726.[67] The Court observed that in some cases the need for a reliability warning maynot be readily apparent to a jury, instancing delayed complaints. This was contrastedagainst cases where witness reliability is so central, and the need for caution so obviousto the jury, that a warning cannot be said to provide them with material assistance.29The Court added that, where the need for caution is obvious, a warning can tip thescales artificially; it can convey the impression that the judge thinks the witness islying.30 The same point was made in HP v R31 and Reddy v R.32[68] In our view the Judge was unduly influenced by his concern for unfairness toW. Whether or not W was afraid of Mr Skantha, he was on the face of it an accompliceto the murder of Ms Rush, complicit at least in the destruction of evidence after thefact. However, the Judge's other reason was sound; W's reliability was a major issuein the trial and that could not have been more obvious to the jury. The entire defencecase was that W was the murderer and had framed Mr Skantha, and counsel expresslyinvited the jury to find that W lied in the witness box to protect himself. A warningwould have been redundant in the circumstances, and for that very reason it wouldhave carried the risk that the jury would interpret it as an indication from the Judgethat they ought to reject W's evidence.[69] We are not persuaded that the omission of a reliability warning was an error,and we do not accept that its omission might have affected the outcome.Admission and treatment of propensity evidence[70] In the interests of brevity we respond to Mr Eaton's submissions in a slightlydifferent order than he addressed them in his synopsis of argument, and some of thesubmissions, relating to lack of balance, are dealt with at [105] below.Inclusion of P's evidence[71] Mr Eaton submitted that the Judge's decision to admit the evidence of P wascontrary to the decision of this Court, which had limited the volume of propensity29 At [60].30 At [61].31 HP v R, above n 24, at [48].32 Reddy v R, above n 24, at [48].evidence to manage the risk of unfair prejudice. Further, her evidence was broadlysimilar to most of the propensity witnesses; she claimed Mr Skantha made unwelcomesexual advances on a number of occasions. He made these advances in public and onsocial occasions. She rebuked him, swearing and on one occasion slapping him.She was aged 17 when she met him. Counsel submitted that Mr Skantha had no reasonto fear disclosure of her relatively trivial claims.[72] The Judge ruled the evidence admissible, finding that it was of high probativevalue and would not prolong the trial or result in unfair prejudice.33 We are notpersuaded that he was wrong. We reject the submission that this Court limitedpropensity evidence to the witnesses who were the subject of its decision; the Courtsaid only that their evidence would not overwhelm the trial,34 and we are not persuadedthat the addition of P's evidence alters that conclusion. P's evidence was probative ofunwanted sexual advances made in the presence of witnesses. Although she did notgo to the police at the time, her allegations were sufficiently serious to warrantinvestigation and might have sustained charges of assault. Her evidence was credibleand probative of a pattern of inappropriate conduct towards young women. It wastherefore reasonable for the Judge to conclude that this incident might havecontributed to the appellant's concern at Ms Rush's threats.Failure to reconsider admissibility of propensity evidence[73] Mr Eaton criticised the Judge for failing to revisit the admissibility of thepropensity evidence having regard to the evidence led at trial. He submitted that theevidence did not sufficiently justify the inference that Ms Rush's insignificant andinaccurate threats were operating on Mr Skantha's mind at the time of her death.He supported this by reference to the evidence of specific witnesses, including P.[74] We observe that this is a difficult argument to advance in circumstances whereMr Eaton, as trial counsel, never asked the Judge to revisit admissibility. In any event,the argument has no merit. The evidence at trial was if anything stronger than it waswhen this Court ruled the evidence admissible; much of the propensity evidence was33 R v Skantha [2019] NZHC 3062 [Reasons for Ruling 4 judgment].34 Pre-trial Appeal, above n 3, at [86].not seriously challenged. The exchange of messages between Ms Rush andMr Skantha on the night of 2 February amply evidenced his concern about her threats.It was the imminence of those threats that led Mr Skantha and W to go at once to herhome. We have mentioned at [16] above the evidence of witnesses who overheard aconversation between Mr Skantha and W evidencing such concern. Those witnesseswere cross-examined on this point but maintained that they overheard a conversationabout an Instagram post in which Mr Skantha sounded very stressed. There is noevidence of any other reason why Mr Skantha might rush to her house at that time.The notion that W alone was concerned about her threats, and Mr Skantha an incuriouspassenger, is untenable.[75] We also understood counsel to argue that the propensity evidence was relevantonly insofar as it established conduct that would amount to a criminal offence. We donot accept this submission. The question is not whether an offence could be proved,nor whether unsavoury and perhaps illegal conduct outside the workplace wouldjustify Mr Skantha's employer in taking disciplinary action against him under histerms of employment. It is whether he took seriously the risk that Ms Rush'sallegations might lead to either of those outcomes.[76] We record that Mr Eaton made a particular point about evidence thatMr Skantha had asked a witness, J, whether a friend of hers would have sex with himfor money. There was evidence that J, who was aged 16, knew this girl from school.Counsel submitted that the evidence did not justify the inference that Mr Skantha knewJ's friend was a schoolgirl or a minor, and that being so, the evidence was inadmissiblefor the reasons given by this Court in its pretrial decision: it is not unlawful to pay aperson over the age of 18 for sex. The Judge made no reference to this defence pointin his summing-up, instead describing her (accurately) as a school friend of J's. We donot accept that this evidence ought to have been excluded. The inference thatMr Skantha knew she was a schoolgirl was available from the fact that she was a friendof J's. The defence did not suggest otherwise at trial; its stance was that Mr Skanthawas merely joking. That being so, the Judge cannot be criticised for not making thepoint that Mr Skantha may have thought J's friend was 18.Failure to direct the jury that propensity evidence was relevant only to motive[77] Mr Eaton submitted that the Judge inexplicably focused the jury onMr Skantha's knowledge of the complaints rather than whether those complaints wereoperating on his mind on the night. He developed this submission by reference to theallegations of the propensity witnesses, including the hearsay evidence of Ms Rushherself, submitting that the allegations were untrue or explicable or trivial and sowould not have been operating on Mr Skantha's mind.[78] We respond here to the submission that the Judge failed to identify the issuefor the jury. We do not accept it. The Judge introduced his directions about evidenceof Mr Skantha's conduct on other occasions, explaining that:[155] As I have already explained to you, often a jury never hears about adefendant's conduct on occasions other than he is charged with because of theway that risks a defendant's fair trial rights and might cause the jury to beunfairly prejudiced against the defendant. For you to hear evidence ofDr Skantha's conduct on occasions other than the matter he is directly chargedwith, there had to be some particular reason why this evidence was relevant toan issue at trial.[156] The crucial issue in this trial is whether the Crown can prove beyondreasonable doubt that Dr Skantha was the killer of Amber Rush. It goes toidentity. Relevant to that issue is whether or not Dr Skantha would have hada motive to kill Amber Rush. The Crown case is, as you have been told againand again, that he did have such a motive in that Amber Rush had told him shewas serious about going to the Police and the hospital, and telling them abouthis supplying minors with alcohol, offering them money for sex and touchingup minors without consent.The Judge then went on to outline the competing contentions of the parties.[79] In our view this direction made it very clear that the propensity evidence wasrelevant to motive alone and would not otherwise have been called. We do not acceptthe related submission that it was an error to describe it to the jury as "propensity"rather than "motive" evidence; what mattered was that they understood why it wasbeing led and for what purpose they might rely on it.Erroneous direction as to standard and onus of proof[80] The Judge directed the jury that the Crown did not have to prove beyondreasonable doubt that Mr Skantha was thinking specifically about the propensitywitnesses when Ms Rush threatened to go to the police. Mr Eaton argued that this wasan error. He submitted that the jury ought to have been told to decide whether theywere satisfied beyond reasonable doubt that the alleged conduct occurred. Only ifthey were could they then consider whether the evidence assisted them at all on thequestion of motive. He focused this submission particularly on the question ofwhether Ms Rush was indecently assaulted as she had alleged.[81] We reject this submission. The issue was not whether the allegations were truebut whether they supplied Mr Skantha with a motive.35 The distinction is important.36It did require, as the Judge directed, that the jury had to be satisfied Mr Skanthaconducted himself in certain ways before using the evidence of that conduct as a basisfor finding the Crown had ultimately proved the essential elements of the chargesagainst Mr Skantha. It did not require the facts alleged by the propensity witnesses beproved beyond reasonable doubt. The specific question whether Mr Skantha wasguilty of the offence of indecent assault was not before the jury, a charge relating tothat having been withdrawn, as we explained at [36] above.[82] Mr Eaton also submitted that at one point in his summing-up the Judgereversed the onus of proof, asking the question whether "[Mr Skantha] would havethought that the way he conducted himself with these people was of no consequence?"[83] We do not agree that the Judge reversed the onus. He made that remark whensummarising the competing cases. He was addressing Mr Eaton's suggestion that thepropensity evidence would mean nothing if the jury did not believe he was thinkingabout the incidents comprising the propensity evidence when Ms Rush threatened togo to the Police. At the beginning of his summing-up he had explained thepresumption of innocence, directing the jury that Mr Skantha bore no burden ofproving innocence, that the burden of proof lay on the Crown and that the chargesmust be proved beyond reasonable doubt. Taken as a whole the directions weresufficiently clear about the burden and standard of proof.35 See above at [75].36 See the discussion in R v Howse [2005] UKPC 30, [2006] 1 NZLR 433 at [17].Failure to direct the jury on the "main" issue: whether the claims of the propensitywitnesses were true[84] Mr Eaton submitted that the Judge failed to identify and emphasise for the jurythat the first and primary question was what, if anything, the propensity evidenceestablished in each alleged instance of misconduct. Specifically, the question to bedecided was whether or not the evidence established that any of the prior alleged actsoccurred at all, and if they did whether those acts were indecent assaults. He submittedthat the Judge proceeded rather on the assumption that the allegations were true, or atleast failed to emphasise repeatedly that the claims were mere allegations. We havetouched on this at [75] and [81] above, and we here deal with the specific complaintsabout each of the instances.(i) The alleged indecent assault of Ms Rush[85] Mr Eaton submitted that the first and highly important inquiry for the jury waswhether Ms Rush was indeed indecently assaulted. If she was not, the relevance ofthe motive evidence fell away, in his submission.[86] We accept Mr Eaton's submission that the defence had focused on this issue,advancing a detailed case that there was no such assault. We have referred to this issueat [48] above. The defence case was that Ms Rush stayed at Duxford Crescent on theevening of 3 January 2018 and that is when the alleged indecent assault must haveoccurred. M, who slept on the couch with Ms Rush and Mr Skantha, did not witnessan indecent assault and believed he would have known had it occurred. Ms Rushcontinued to associate with Mr Skantha, returning to his house on 7 January. It wasthen that she took offence at his offer of money for sex.[87] Although Mr Eaton did not develop this point in his submissions before us, hehad reminded the jury, without labouring the point, that Ms Rush may have had areason to accuse Mr Skantha of something he had not done. As noted earlier, theexchange of messages began with Mr Skantha asking her if she had used his creditcard. She had told a friend, M, that she had done so, and in evidence he had admittedthat, as part of that conversation, he told Ms Rush to be sure to tell everyone thatMr Skantha had offered to pay her for sex and had supplied minors with alcohol.[88] We have already dealt with the relevance of the evidence of the allegedindecent assault.37 Whether it happened was a question for the jury. The Judgecorrectly identified the issue for them and summarised the defence case about it.He did not assume that the allegations were true. He had earlier reminded the jury thatthey had Mr Skantha's statements in his police interview to the effect that he had noreason to be afraid of her threats.(ii) The alleged indecent assaults of other women[89] We have referred at [37] above to the evidence of alleged indecent assaults oftwo other women. Mr Eaton submitted that the Judge repeatedly addressed thisevidence without warning the jury that the allegations were not proved.[90] We make two points about this. First, the Judge did remind the jury that theywere dealing with allegations, and he did direct them that it was for them to decidewhether Mr Skantha had sexual contact with minors or young people without theirconsent. He referred to this evidence (and that of offering money for sex) and said:[172] You need to be mindful of the submissions which Mr Eaton made toyou as to why you should disregard that evidence. The defence say, first ofall, you cannot regard the Crown witnesses as both honest and reliable as tothe complaints which they say Amber Rush made. The defence say, even ifyou accept the evidence of these witnesses as to how they say Dr Skanthabehaved, you cannot and should not infer from that evidence that Dr Skanthawould have been mindful of what he had done with these people whenAmber Rush told him that she was going to the Police, or that he would havebeen so threatened by what she was telling him that he would have decided tokill her.[91] Secondly, we accept Mr Bates's submission that the defence had not squarelyconfronted the evidence of other indecent assaults (or offers to pay for sex). Rather,the defence sought to minimise Mr Skantha's behaviour, characterising it as showingoff or making a nuisance of himself. That stance was presumably taken for the goodreason that there was cogent evidence of the behaviour from a number of witnesses.By way of illustration, we refer to the evidence about a woman, L, who had passed outon Mr Skantha's couch after drinking to excess. (We referred to this evidence at [37]above.) The defence challenge to the evidence of eyewitnesses at trial focused on the37 See above at [75] and [81].fact that her body and Mr Skantha's hands were covered by a blanket, so that it waspossible the witnesses misinterpreted what they saw. Their response was that theposition of his hands indicated that he was touching her vagina and she evidencedsigns of sexual arousal. Following that, Mr Eaton did not contend that the incidenthad not happened at all or that it had been consensual; instead, he invited the jury tofind that Mr Skantha had not touched L under the blankets and had simply beenwinding up his friends and showing off; and further that there was no reason to thinkL would complain about it.Undue emphasis given to propensity evidence in summing-up[92] Mr Eaton submitted that the Judge's discussion of and references to thepropensity evidence consumed a significant proportion of the summing-up.He contrasted that to what he said were very brief references to the evidence in theclosing address of Mr Bates. At the end of the summing-up, Mr Eaton complainedabout the emphasis that had been given to the evidence. The Judge drew the jury'sattention to Mr Eaton's suggestion that the propensity evidence was ultimately of littleconsequence in the Crown's case and invited them to consider that suggestion.Counsel described that before us as an unusual and troubling end to a summing-up.The Judge ought to have emphasised more than he did the limitations of the evidenceand the risk of unfair prejudice.[93] To the extent that this was an argument that the propensity evidence hadbecome unimportant by the end of the trial, we do not accept it. Motive was animportant issue and most of the evidence went to that issue. The Judge could not havedirected the jury that the Crown ultimately placed little reliance on the propensityevidence; that would have been factually incorrect. The evidence had been led andthe Crown relied on it. The Judge had to deal with it carefully and at some length.[94] To some extent the argument is a criticism of the summing-up for beingdiscursive. Counsel submitted that key points that ought to have been emphasisedwere buried at different points in the summing-up. It seems to us, however, that theJudge was responding to the way in which the respective cases had been presented.What matters is that the jury could not have been confused about the use that could bemade of the evidence and the risk of unfair prejudice. The Judge took care, whenconcluding his discussion of the propensity evidence about sexual matters, to remindthe jury of its relevance and caution against unfair prejudice:[181] Independently of the submissions that have been made by the Crown,I direct you that, when considering what inferences you can draw from thisevidence, you must be careful that it does not cause you to be unfairlyprejudiced against Dr Skantha. Mr Eaton said that it is asking a lot of a juryto be able to do that but, I am confident with the care you have shown in thiscase, that you will be able to do that. If you decide he has participated in theconduct which you have heard of from these witnesses, you may think he hasbehaved in a way unbecoming of a 30 year old doctor.[182] The evidence is however relevant and probative only in terms of theissue as to motive. The killing of Amber Rush is an act very different fromanything that Dr Skantha did with these young people. Because of that, theevidence as to how he conducted himself with these young people does notmake it more likely that he killed Amber Rush, except insofar as the evidencemight establish to you that it was Dr Skantha who had a motive to killAmber Rush.[183] You must therefore not infer that, simply by reason of Dr Skanthabehaving in the way it is alleged, he is more likely to have been Amber Rush'skiller.[184] The evidence is also just one part of the Crown case againstDr Skantha. The crucial issue in this case is whether, from all the evidencethat you can accept has been established as to Dr Skantha's conduct on thenight of 2 February 2018 and the days afterwards, whether or not, with thatevidence, the Crown has proved he was Amber Rush's killer.[95] We record, lest it be thought we have lost sight of it, that in his writtensubmissions Mr Eaton referred to a large volume of prejudicial evidence, instancingthe evidence we have discussed but also evidence about drug use. The evidence aboutdrugs was not among the points developed in argument, perhaps because the defenceaccepted at trial, we think correctly, that it was inevitable some of the witnesses wouldmention drugs and the Crown took care not to emphasise it.Refusal to admit hearsay evidence of Ms Rush's complaints about W[96] As noted at [53] above, the defence wished to adduce hearsay evidence thatMs Rush had complained to two witnesses, one a former best friend and the other aformer boyfriend, about W, saying that he had appeared unexpectedly in her bedroomlate at night and stood by her bed, behaviour which she described as "weird" and"creepy".[97] The Judge ruled the evidence inadmissible on the ground that circumstancesattaching to the statements did not provide a sufficient assurance of their reliability.38He noted by way of context that he had already visited the question of hearsaystatements by Ms Rush before trial, when the Crown wished to put in evidence herallegations to support a charge of indecent assault. The Judge ruled, having regard tothe nature of the social context in which those statements had been made, that therewas not sufficient assurance of reliability.39 He took the same view of the evidencethat the defence sought to adduce, stating that Ms Rush could not have been awarethat her statements could be used as evidence in a criminal proceeding and theimportance of being accurate would not have been brought home to her before shespoke. There was also a delay between these events and her speaking to thewitnesses.40 He noted that W could be cross-examined about whether he had behavedin that way. He could also be cross-examined about what Ms Rush had seen as hisattempts to interfere with her ambition to move into Mr Skantha's house at DuxfordCrescent.[98] On appeal, Mr Eaton submitted the context of the hearsay statements didprovide the required assurance of reliability. The two witnesses gave broadlyconsistent accounts. Indeed, W accepted that he had entered Ms Rush's home.This evidence can be distinguished from Ms Rush's hearsay allegations of indecentassault because that evidence raised a risk of unfair prejudice arising from an inabilityto cross-examine her. The question of reliability was ultimately one for the jury.The omission of this evidence resulted in a miscarriage of justice.[99] Mr Bates submitted that there was no merit in this ground of appeal.The Judge's ruling was orthodox. In any event, Mr Skantha took the opportunity toput Ms Rush's assertions to W in cross-examination or to raise them in closing.[100] In our view the circumstances of the statements did afford sufficient assuranceof reliability for admissibility purposes. Two witnesses, to whom Ms Rush had spokenseparately, said essentially the same thing. We further accept Mr Eaton's submission38 Evidence Act 2006, s 18(1)(a).39 High Court decision, above n 6, at [70].40 R v Skantha, HC Dunedin, CRI-2018-012-000310, 13 November 2019 (Ruling No 2), referringback to the High Court decision, above n 6, at [64]–[70].that although Ms Rush's allegations of indecent assault were similarly made in a socialcontext, they would have raised a significant issue of unfair prejudice for the defenceif admitted.[101] We are not, however, persuaded that there is a real possibility that the absenceof this evidence affected the result. We say that for two reasons.[102] First, there was other cogent evidence that W was obsessed with Ms Rush andhad entered her house uninvited at night. She twice sent text messages to him statingthat "[y]ou turn up to my house uninvited all the fucking time". He admitted that hehad turned up "once or twice at night" and that he may have done so uninvited whenshe was asleep in bed. And there was the unchallenged evidence of a friend of hers,who deposed that W wanted to go out with her and sought his help in setting it up.Mr Eaton was able to make the following suggestion to the jury:He's got the hots for her. But she's not reciprocating. Not interested in himlike that at all. We knew he was a regular visitor to Amber's house. Lisa[Mills] told you about that, and he told you about that. We know he went thereby himself late at night. That was the occasion I said to him he creeped herout He didn't deny it but sought to give an explanation as to why he'd gonethere.[103] There was also evidence, including text messages, to the effect that W wantedthe room in Mr Skantha's house that Ms Rush planned to move into, and was jealousabout her plans to do so. When dealing with that topic, counsel said to the jury:And Amber sends that message you might think is quite telling, on the lateDecember where she says to [W], "You tum up at my house uninvited all thefucking time". He's the one who turns up uninvited, he's the one who's beenthere at night before. So, as at the beginning of 2018, what do you make ofit? [W] a bit obsessed with Amber? Hurt by Amber? Aware that Amber and[C] are isolating him from Vinnie, negatively impacting on his Vinnie, wantingto make it up to Vinnie?[104] The second reason why we think this evidence would not have made adifference is that the circumstantial case against Mr Skantha was exceptionally strong.It is not surprising that the jury deliberated for only four hours. On the view we takeof this case we need not decide for ourselves whether the evidence provedMr Skantha's guilt beyond reasonable doubt,41 but we record that we are in factsatisfied of it.Summing-up: unfairness and lack of balance[105] Mr Eaton grouped a number of topics under this heading. We have dealt withsome of them — lies, demeanour and expert evidence — separately below as weconsider that they are better characterised as distinct grounds of appeal. We do notoverlook his submission that they contributed to an overall lack of balance andunfairness that was sufficient to cause a miscarriage of justice.Defence case as to indecent assault[106] It was, as Mr Eaton submitted, an important limb of the defence case thatMr Skantha had not indecently assaulted Ms Rush, and that being so, the allegedmotive fell away since he was hardly motivated to commit murder to preventa demonstrably false complaint. Counsel submitted that the Judge inexplicably failedto refer to the defence case as to whether there was an indecent assault at all.[107] We do not accept this submission. The Judge directed the jury as follows:[163] Mr Eaton argued that this propensity evidence about Dr Skanthaoffering money for sex, or about him having sexual contact with others, wouldmean nothing if you can be satisfied that he had never indecently touchedAmber Rush. He referred you to some of the evidence relating to that and saidyou can be satisfied that no indecent assault of Amber occurred, [M] neversaw it. He said, on that basis, Dr Skantha would not have been concernedabout that conduct ever becoming the subject of a complaint with the Policeor the subject of investigation.Propensity generally[108] More generally, Mr Eaton submitted that the Judge dealt with the propensityevidence in a way which was prejudicial to the defence. He repeatedly assumed thatthe claims of the propensity witnesses were true. He referred to a "body" of evidence"from various witnesses" as to Mr Skantha's alleged sexual misconduct with threeyoung women. He told the jury that the Crown case was that Mr Skantha had a motive41 Haunui v R, above n 20, at [67].in that Ms Rush had told him she was serious about telling the police and the hospitalabout his "supplying minors with alcohol, offering them money for sex and touchingup minors without consent". He implied that there might be yet more young womenfrom whom the jury had not heard, saying that if the jury accepted the evidence ofwitnesses they could infer that he was very likely to have realised that her complaintwould "open up a can of worms" for him and that there could be an enquiry as to hisalleged offending which could have led the police to other potential victims orwitnesses. He spoke of Mr Skantha having been involved in contact with "the likesof these women", which illegitimately conveyed the impression that there may havebeen other incidents in which Mr Skantha behaved inappropriately around women.[109] Further, counsel submitted, the Judge sometimes offered a rejoinder to defencecontentions that he had summarised. Specifically, he recorded Mr Eaton's suggestionthat it was inconceivable that Mr Skantha would have been thinking about three namedwitnesses on the night Ms Rush was threatening to go to the police and said that:Well, it may be, as a 30 year old doctor, he would have had no thought at allas to how he had been apparently interested in having sex with girls muchyounger than himself and had demonstrated that with the likes of [P] or inwhat he said to [J] about having sex with a school friend of hers, or with [J]herself.[110] We have already rejected a number of these points. So far as the others areconcerned, it was correct that there was a body of evidence from a number of witnessesabout the sexual misconduct. The Judge's summary of the Crown case was accurate.We do not accept that he conveyed the impression that there were in fact othercomplainants or witnesses; he was making the general point that the Crown need notshow that Mr Skantha had specific complainants in mind when he responded toMs Rush's threats. He was directing the jury that the question of motive rested on theCrown claim that Mr Skantha feared an investigation into his conduct with people towhom Ms Rush's complaints could lead the Police. Further, the summing-up must beconsidered as a whole. As noted at [94] above, the Judge did caution the jury againstunfair prejudice and remind them of the purpose for which the evidence was led.Treatment of inferences[111] Mr Eaton submitted that the Judge's direction on inferences invited the jury toinfer that Mr Skantha was guilty. He gave six examples of inferences that the Crownwanted the jury to draw, all of which were hotly contested. Mr Eaton submitted theJudge ought to have discussed inferences in relation to uncontested facts to avoidconfusing the jury. We do not think this is a fair criticism of the Judge's direction.It was appropriate to give concrete examples drawn from the case at hand, and theJudge made it clear that these were inferences the Crown wanted the jury to draw.He immediately went on to summarise what the defence had to say about thoseinferences, namely that the underlying facts were too uncertain to justify drawingthem.References to key players[112] Mr Eaton submitted that the Judge throughout referred to the appellant as"Dr Skantha", without ever using his first name, while every reference to eitherMs Rush or W included their first names, so personalising them for the jury.The Judge also repeatedly referenced Mr Skantha's age, contrasting it with that ofMs Rush and other witnesses. Counsel drew our attention to the passage from thesumming-up which we have quoted at [109] above. He pointed out that not all of thewitnesses were as young as 16. Two of the alleged victims of indecent assault wereaged 19, but the Judge did not draw the jury's attention to that fact.[113] This Court has held that it is best to avoid using forenames when referring tocomplainants while referring to the defendant impersonally as "the defendant".42 It isnot the use of forenames that is problematic, but the contrast with the treatmentaccorded the defendant. Nation J did not speak impersonally of Mr Skantha as "thedefendant". We were told that Mr Skantha prefers to be called "Mr" rather than "Dr",but it does not appear that the trial Judge was asked to refer to him in that way. And asMr Bates submitted, the age of Ms Rush and the other witnesses, relative to that ofMr Skantha, was part of the Crown case. It reflected poorly on him, but notillegitimately so.42 Curel v R [2020] NZCA 473 at [46].Taking on prosecutor's role[114] Mr Eaton submitted that in various ways the Judge took on the role of theprosecutor. The Judge made a number of references to passages from W's policeinterview which were consistent with W being fearful of Mr Skantha, but then directedthe jury that it was not suggested to W that he had no reason to be fearful. Counselsubmitted by directing the jury in this way the Judge was effectively telling them toplace no relevance on W's failure to take any steps to report the alleged offending. Noreference to this evidence had been made by the prosecutor in closing. The Judge alsoreferred to W's evidence that Mr Skantha had told W in detail about how Ms Rush waskilled and enquired rhetorically why Mr Skantha would have done that. The Crownhad not invited the jury to speculate about that point, and the defence of course haddenied it. The Judge also sought to excuse lies by W regarding the phone call betweenW and SC at 11.54 pm, when the prosecutor had not referred to those lies at all.[115] We do not accept that the Judge took on the prosecutor's role when outliningthe respective cases. The first observation likely reflected the basis on which the casehad been tried, with the Crown refraining from leading other evidence about W's fearof Mr Skantha. The others were part of the evidence before the jury and the Crown'scase, notwithstanding that the prosecutor had not focused on them in his closingaddress. The Judge did draw the jury's attention to inconsistencies in W's accountabout the phone call and the defence suggestion that W was creating an alibi forhimself. He did not invite the jury to accept W's account.The lies direction[116] In a ruling delivered during the trial, on 19 November 2019, the Judge ruledinadmissible veracity evidence about lies Mr Skantha allegedly told to the Police onother occasions, unrelated to Ms Rush.43 It concerned allegations that he had tried toget young females into his car and that he had unlawfully entered a complainant'sbedroom and taken a laptop. The Crown had sought to adduce evidence that he liedwhen interviewed about these matters because the defence had attacked W's veracityby cross-examining him about unrelated incidents.43 See the subsequent reasons judgment: Reasons for Ruling 4 Judgment, above n 33.[117] The Crown was however permitted to challenge Mr Skantha's veracity bysuggesting that he had lied in his police interview by claiming that Ms Rush was noteven a friend, that he was not concerned about her allegations, that he had not beenanywhere near her house on 2 February 2018, that he and W did nothing at BlackheadQuarry, and that all they did at Balclutha was have a barbecue. The Judge gave a liesdirection accordingly. He also directed the jury that they might take into account hislie to his employer about the death of his mother, saying that it was relevant to motive.[118] However, the Judge also gave the jury a direction about lies that W told thepolice when interviewed in December 2017 about sexual allegations he faced.The Judge stated that:[146] You have also heard submissions from the defence and the Crown asto the lie or lies which [W] told the Police when he was interviewed aboutsexual allegations he faced from December 2017. [W] accepted he hadinitially lied to the Police in that interview in the face of the allegations hethen faced. Had he ever stood trial in relation to those allegations, a Judgewould have had to warn the jury about how they might consider lies in just thesame way as I have done in this trial and what you are asked to accept werelies Dr Skantha told to the Police in his interview. The fact someone beinginterviewed by the Police has lied does not necessarily mean they are guiltyof the allegations they were being interviewed about.[147] The defence refer to the lies [W] then told as evidence that he wassomeone who was prepared to lie to get himself out of the predicament hefaced. They suggest this will be of considerable weight to you when you haveto assess whether he lied about what happened with Amber Rush to avoid hisbeing identified as her killer.[148] It will be for you to decide what you make of the evidence in thisregard. In doing so, it will be relevant that [W] did tell the Police, despitebeing told of his right to silence on being arrested, that he had consensual sexwith the complainant in that case, and subsequently pleaded guilty to a chargeof having sex with a 15 year old.[149] As I said to you, after you heard [W] being questioned about the lies,the defence are not suggesting that the conduct [W] was being interviewedabout would be of any relevance to you in deciding whether or not he couldhave been Amber Rush's killer. That was a proper stance to take. There isnothing in the evidence you have seen and heard to suggest there was anysexual motive in the killing of Amber Rush.[151] You are also entitled to consider the fact [W] lied to the Police in hisinterview in December 2017 in deciding whether he was an honest witness inthe evidence you heard from him in this trial.[119] Mr Eaton submitted that it was wrong and unfair to give a lies direction inrespect of W, still less to discount his lies by pointing out that W did make admissionsabout his behaviour with the complainant in that case. And so far as the direction withrespect to Mr Skantha's lies was concerned, the Judge ought to have emphasised thatit was important not to give disproportionate weight to any alleged lie and he ought tohave advanced any possible innocent explanation.[120] We do not accept that there was anything wrong with the lies direction givenfor Mr Skantha. It was orthodox. Mr Skantha did not accept that he told any lies.The Judge emphasised that the jury must first be satisfied that he did lie and theyshould recognise that a lie is not necessarily probative of guilt. He warned the jurythat they must exercise considerable caution when deciding what weight to give to anylies told in the interview. The Judge was also plainly conscious of the potentiallyprejudicial effect of evidence that Mr Skantha lied about his mother's death. He toldthe jury that they could not infer from that lie that he was more likely to have killedMs Rush.[121] Turning to the lies warning given about W, in Khairati v R this Court firmlydiscouraged the practice of giving a lies direction for a Crown witness, pointing outthat a lies direction under s 124 of the Evidence Act is intended to give a specificwarning to the jury where the Judge fears they may attach undue weight to a lie utteredby a defendant.44 A Judge may allow a jury to consider a lie by a non-defendantwitness when determining the credibility and reliability of that witness's evidence, butthe Judge should refrain from offering innocent explanations for the lie.45[122] However, the direction given in respect of W was not an orthodox lies directionand it was nowhere near as extensive or exculpatory of the witness as the directioncondemned in Khairati. The Judge did caution the jury that a lie told to the Policedoes not necessarily signify guilt, but his evident purpose was to point out the extentof W's lie and to caution them that (as the defence accepted) it was not evidence thatW killed Ms Rush. He did tell the jury that they could consider the lie when assessingW's evidence. We do not think there is any risk that the Judge's direction affected the44 Khairati v R [2017] NZCA 31 at [24] and [27], citing Ngatai v R [2016] NZCA 352 at [19].45 Khairati v R, above n 44, at [27].result. W was by his own admission an unreliable witness and there was ampleevidence of that.Demeanour[123] The defence sought to make much of the demeanour of Mr Skantha and W intheir respective police interviews, describing Mr Skantha as calm, polite and confidentwhile W's demeanour was not at all what one would expect of a 16-year-old who hadfound himself associated with a friend's murder, nor was it consistent with W's allegedfear of Mr Skantha.[124] The Judge recounted Mr Eaton's submissions on the point, then cautioned thejury about relying on demeanour:[128] I do warn you nevertheless that, simply observing witnesses andwatching their demeanour, how they appear, as they give evidence is not, byitself, necessarily a good way to assess the truth or falsity of their evidence. Awitness who is being questioned may not appear confident or may hesitate,fidget or look away when giving evidence. That does not necessarily meanthat their evidence is untruthful. A witness may understandably be nervousgiving evidence when responding to questions or giving evidence in anunfamiliar environment in front of unknown people. On the other hand, theperson being questioned may appear confident, open and persuasive, but maynevertheless have told you something which is not true.[125] The Judge then reminded the jury that the defence case was that W was adishonest witness and told them that they were entitled to consider whether the way inwhich he gave his narrative events to the police, and in court, was consistent orinconsistent with him deliberately lying about all that he was describing.He emphasised that he was not telling them that demeanour must be totallydisregarded; they could make of it what they would. But they should bear in mindthat demeanour alone may not be a good indicator as to truthfulness.[126] On appeal, Mr Eaton submitted that the direction was unfair and inconsistentwith the Supreme Court decision in Taniwha v R, in which the Court observed that thekey consideration for a trial judge when considering a direction will be whether thereis a "real risk that witness demeanour will feature illegitimately in the jury'sassessment of witness veracity or unreliability".46 In this case, Mr Eaton submitted,there was no risk that the jury's assessment of demeanour would bear illegitimately onthe assessment of W's veracity or reliability. He submitted that the direction giveneffectively invited the jury to disregard his submissions about W's demeanour.[127] We do not accept that the Judge was wrong to caution the jury against attachingtoo much weight to demeanour. It plainly was in issue, especially for the defence, andit was not unreasonable to think there was a risk the jury might attach too much weightto it. The Judge did not tell the jury to disregard Mr Eaton's suggestions or direct thatthey must not take demeanour into account.Experts[128] Mr Eaton submitted that the Judge's brief direction on expert evidence ignoreddefence criticisms of one expert witness, Mr Pelvin, who gave evidence regardingGoogle location data. Mr Eaton submitted that the witness was inexperienced andmade bold claims without being able to substantiate them, and a fair and balanceddirection would have addressed the primary question for the jury as to whether he wasin fact an expert on whose opinion they might rely.[129] It does not appear, however, that the admissibility of Mr Pelvin's evidence wascontested at trial. It was not in dispute, in other words, that he was qualified to giveexpert evidence on a topic with which the jury were not familiar. They were told thatthe weight to be given to his evidence was a matter for them. The Judge drew attentionto the defence criticisms of Mr Pelvin's opinions, the substance of which was that thejury could not conclude Mr Skantha had deliberately tried to hide location data.Conclusion[130] Mr Eaton mounted a wide-ranging and thorough challenge to the conduct ofthe trial and the summing-up, but we are not persuaded that there were any materialerrors. Those we have identified were not sufficiently serious, even in combination,to create a real risk of a different outcome. It is not necessary that we form our own46 Taniwha v R [2016] NZSC 123, [2017] 1 NZLR 116 at [43].view of Mr Skantha's guilt but we have done so; we are satisfied that the evidenceproved his guilt beyond reasonable doubt.Result[131] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent