GEORGE v R [2021] NZCA 56

GEORGE v R [2021] NZCA 56 [10 March 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA703/2017[2021] NZCA 56BETWEEN VINCENT MANA GEORGEAppellantAND THE QUEENRespondentCA711/2017BETWEEN DENIS ROBERT HENRY SOLOMONAppellantAND THE QUEENRespondentHearing: 2 December 2020Court: French, Whata and Mander JJCounsel: G C Gotlieb and H Z L Krebs for Appellant GeorgeM W Ryan and J E Tulloch for Appellant SolomonL C Preston for RespondentJudgment: 10 March 2021 at 9 amJUDGMENT OF THE COURTA The application for leave to adduce the evidence of Fairlane Michelle Henareis declined.B The appeal brought by Vincent Mana George (CA703/2017) is dismissed.C The appeal brought by Denis Robert Henry Solomon (CA711/2017) isdismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)TABLE OF CONTENTSPara NoIntroductionBackgroundThe Crown case at trialThe defence at trialGrounds of appealMr Solomon's appealMr George's appealThe new evidenceAnalysis of the new evidenceMr Putt's hearsay statementAdmissibility of the evidence of Mr KamotoAdmissibility of statement made to police by Mr Solomon on23 February 2016Closing address of prosecutorThe Judge's direction on intent and the question trailSummary of conclusionsOutcome[1][3][10][31][38][38][41][43][61][77][93][106][121][127][152][154]Introduction[1] Mr George and Mr Solomon are two patched members of the Tribesmen gang.A High Court jury found them both guilty of the murder of a 24-year-old gang prospectcalled Clayton Ratima.[2] Both men now appeal their convictions.Background[3] At about 1.20 pm on Sunday 21 February 2016, two Tribesmen gang membersdriving a white Honda Odyssey motor vehicle dropped an unconscious Mr Ratima offat an Auckland hospital.[4] The serious nature of his injuries prompted medical staff to alert the police.[5] One of the two men who had driven the silver Honda Odyssey was still at thehospital when the police arrived. He claimed they had found Mr Ratima lying on theroadside. The other man had already left the hospital in the car which was laterdiscovered abandoned.[6] Mr Solomon was the registered owner of the vehicle.[7] Mr Ratima was put on life support, pronounced brain dead the following dayand on Wednesday 24 February 2016 after his family had had a chance to say theirgoodbyes, he was taken off life support.[8] According to the pathologist who undertook the post mortem, Mr Ratima hadsustained multiple blunt force injuries to his neck and head, consistent withapproximately eight discrete blows inflicted by fists and/or feet. In thepathologist's opinion, it was apparent that significant force had been used because ofthe nature of the injuries including fractures to two vertebrae in Mr Ratima's neck.She said the ultimate cause of death was subdural and intra-brain bleeding andherniation caused by the blunt force trauma to the head and neck.[9] A police investigation was launched. It was impeded by a lack of co-operationfrom gang members. But a breakthrough came when a friend of the appellantschanged his story and implicated the appellants. They were arrested inNovember 2016.The Crown case at trial[10] Evidence was given that at around 3 pm on Saturday 20 February 2016Mr Ratima started his 24-hour gate duty shift at the Tribesmen gang pad. During theensuing hours there were various comings and goings at the pad.[11] In the afternoon, a number of gang members including the appellants left thepad to attend a concert. A male friend of Mr Ratima and two females stayed behindwith him. At some point the two females departed and Mr Ratima and his friend werejoined by a second male friend. The two male friends left the pad at around 11 pmthat night and said Mr Ratima was fine. At about the same time as they left, aMr Paruru arrived. He was a patched member and also the person for whomMr Ratima was prospecting. He and Mr Ratima were the only people at the pad.Mr Paruru left the pad at around 3 am on Sunday morning leaving Mr Ratima on hisown. Mr Paruru testified that when he left at 3 am, Mr Ratima was fine.[12] According to the Crown, about an hour and a half after Mr Paruru's departure,the appellants returned to the pad, the fatal assault taking place sometime between5 am and 5.18 am. It was a fast, frenzied attack concentrated on the head and neck ofa man the appellants knew could not fight back. The gang code was that when beinghit by a patched member, prospects were not allowed to fight back.[13] The two appellants were jointly charged with murder. On the Crown evidence,it was not clear which of them had inflicted the fatal blows and accordingly each wascharged on the basis of being either the principal offender or a secondary offender whohad assisted the other.1[14] The Crown did not seek to argue that the appellants had intended to killMr Ratima. Rather, it relied on the form of murderous intent under s 167(b) of theCrimes Act 1961, namely that either (a) each intended to inflict bodily injury that wasknown to them to be likely to cause death and were reckless whether death ensued ornot or (b) knew those factors applied to the other.2[15] The key witness for the Crown was a Mr Te Hariona Paul Grace, known as"TH". He claimed to have been present when the fatal assault took place. As theCrown prosecutor acknowledged in her closing address, without TH's evidence therewould not be a case against the appellants.[16] TH was not a gang member himself but he knew Mr Solomon and Mr George.He described them as "friends" and also said he was a "real close" friend ofMr George's younger brother Sid. TH and Sid had been at school together.1 Pursuant to Crimes Act 1961, s 66(1).2 Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [81]–[83]; Edmonds v R [2011] NZSC 159,[2012] 2 NZLR 445 at [22] and [25]; R v Renata [1992] 2 NZLR 346 (CA); and R v Witika (1991)7 CRNZ 621 (CA).[17] TH's evidence was as follows.[18] He had met up with Mr George and Mr Solomon at a night club sometimearound midnight Saturday 20 February 2016. Messrs George and Solomon had beento a concert. We pause here to interpolate that another witness who knew both theappellants and TH was also at the club and saw the three of them there. In the earlyhours of Sunday morning, TH left the night club and travelled to the Tribesmen gangpad with the appellants and a third man whom he did not know. TH was drunk andfell asleep in the car.[19] Polling data from cellphone towers suggest the journey to the gang pad tookplace between 3.37 am and 4.39 am on Sunday 21 February 2016. Polling data fromMr George's phone shows him arriving in the vicinity of the pad at 4.39 am.[20] TH says he was woken up at the gang pad by Mr George saying to him "thisguy wants a fight". "This guy" was Clayton Ratima who had been on gate duty allnight at the pad. TH knew Clayton Ratima. He did not remember anyone else beingat the pad apart from Mr Ratima and the other occupants of the car he had travelled in,that is the two appellants and the unknown man.[21] TH told them he did not want to fight and flailed around with Mr Ratima whileMessrs Solomon and George swore at them. TH described the fight as "soft" and"messy" and "all over the place". He was unclear whether he had connected withMr Ratima. TH said he eventually stopped saying to the appellants he "didn't comehere for this shit." Mr Solomon and Mr George told him not to be a fag. As TH walkedaway, the two of them rushed past him in the direction of Mr Ratima and "launched"themselves at the latter with a punch. TH explained that by "launching" he meant"leaping" at Mr Ratima to punch him. TH saw one punch being thrown. He was notsure by which of the two men but said they were the only two launching at Mr Ratima.[22] TH then walked away. Based on what he had seen and heard, he believedMr Ratima was about to get a hiding and he did not want to be any part of it. As hewas walking away, he could hear scuffling, yelling and swearing.[23] After what seemed to TH like just a few seconds or minutes, Mr George andMr Solomon and the unknown man returned to the car from the direction of the fightand left with TH. The unknown man was driving.[24] At around 5.18 am a Lucinda McDougall arrived at the pad to meet a gangmember. The significance of her evidence from the Crown's perspective was that shesaw men leaving, observed strange conduct on the part of the gang member she wasmeeting which suggested something had happened and also saw a person lying by theback fence who looked as though he had passed out. There was a bottle lying besidehim — deliberately staged, the Crown argued, to make it look as if the man on theground had been drinking. Her description of the person who opened the gate did notmatch Mr Ratima. Yet, his gate duty would not have finished until later that day.[25] At 5.27 am — just under ten minutes after Ms McDougall's arrival —Mr George sent a text to a third party asking that person to come and pick him up.[26] Ms McDougall herself left the pad sometime before 6.28 am. Another womanMs Sunitta McClutchie arrived at around 7 am. She too saw a man lying on the groundby the fence. She saw he had a blanket on him and could see his face. He looked as ifhe was sleeping.[27] In inviting the jury to accept TH's account of what had happened sometimebetween 5 am and 5.18 am as being reliable, the Crown submitted it was consistentwith the medical evidence indicating a swift, targeted attack.[28] TH's account was also said to be supported by the evidence of a bar workerwho worked at a brothel where Mr Solomon went to after leaving the gang pad.He arrived at the brothel at around 6 am. The bar worker, a Ms Puru, knewMr Solomon. Her evidence was described by the Crown in closing as the second mostsignificant item of evidence.[29] Ms Puru said Mr Solomon was crying and asked if she and a few others wouldwrite to him when he was in prison. He said they had done something stupid and hisvan had been used for something. He had a graze on his right knuckles that was rawand red. Ms Puru testified that he was still there when she left work at around 7.30am. She did not see Mr George.3[30] In addition to Ms Puru's testimony and the medical evidence, the othersupporting evidence relied on by the Crown was:(a) Hearsay evidence in the form of a formal statement made to the policeon 7 March 2016 by a Mr Putt who later died before the trial. The thrustof the statement was that Mr Putt attended a gang meeting where thetwo appellants attempted to persuade one of the younger prospectspresent to take the rap for the assault on Mr Ratima.(b) Evidence of demonstrably false statements made by Mr Solomon topolice regarding the use of his car and his movements at the relevanttimes.(c) Unchallenged evidence of Mr George attempting to dissuade TH fromtalking about the incident.(d) Evidence of Mr George's past conduct towards Mr Ratima involvinghim directing punches to Mr Ratima's head, causing the latter tostumble and fall.(e) Inferences to be drawn from the contents of a text sent by a gangmember to Mr George and the latter's lack of response to it. The textwas sent by a gang member at 6.07 pm on Sunday 21 February 2016 toMr George (and no other gang member) stating that Mr Ratima was inhospital and there was a possibility "he may not wake up because of thebeating".3 In his evidence TH said he thought Mr George may have gone to the brothel as well but was notsure.The defence at trial[31] Mr Solomon and Mr George each called one witness. Neither gave evidencethemselves.[32] The witness called by Mr George was the founding member of the TribesmenGang. He claimed no such gang meeting as described by Mr Putt had ever taken place.[33] Mr Solomon called an English pathologist Dr Hamilton who had reviewed theautopsy records. In his view, the cause of death was not the neck and head injuries aspostulated by the Crown pathologist who had carried out the post mortem but ratherthe head injuries alone. Dr Hamilton conceded the spinal fractures were significant,could only have been caused by direct trauma to that area and would have requiredsignificant force, but he did not accept they contributed to death. He also did notaccept the injuries were necessarily inflicted at the same time and opined further thatthe subdural hematoma that led directly to death could have been caused by a fall.[34] In his closing address, trial counsel for Mr George said his client's defence wasthat he had nothing to do with Mr Ratima being assaulted and that the evidence fellshort of showing exactly how Mr Ratima was assaulted and who did it.4 The defencewas that there were a number of possibilities. In relation to Mr George, all that theevidence showed was that Mr George may have been one of the last people to seeMr Ratima alive.[35] Counsel attacked the credibility and reliability of TH's evidence pointing outTH had made previous inconsistent statements and by his own admission was drunkat the time. It was further contended that the Crown had failed to exclude otherreasonable possibilities such as that the true assailant was the unknown fourth manwho accompanied TH and the appellants to the pad, one of the men Ms McDougallsaw leaving the pad (she was not sure but thought there may have been 12 men), orthe man who opened the gate for her or TH himself.5 Moreover, TH did not actually4 None of the counsel representing the appellants in this Court was trial counsel.5 It was never put to TH in cross-examination that there was any other person nearby and/orinvolved, other than the fourth man.see the attack, did not know who had struck the blows and did not hear anyoneencouraging the attack.[36] Reliance was also placed on the absence of any forensic evidence linkingMr George to the crime. The adverse inferences which the Crown sought to draw fromcircumstantial evidence were challenged and aspects of Mr George's conduct such asattending Mr Ratima's tangi were said to be the actions of an innocent man.[37] Trial counsel for Mr Solomon relied on the evidence of Dr Hamilton and alsochallenged the reliability of the witnesses called by the Crown particularly TH and thebar worker as well as the reliability of Mr Putt's hearsay statement.Grounds of appealMr Solomon's appeal[38] The primary ground of Mr Solomon's appeal is that new evidence has come tolight suggesting someone else was the true assailant.[39] Mr Solomon also raises what his counsel Mr Ryan termed secondary groundsof appeal. These concern alleged errors made in admitting a statement Mr Solomonmade to police, an allegedly improper submission made by the prosecutor to the juryin her closing address about the defence pathologist, an inadequate judicial directionon intent and a defective question trail.[40] In Mr Ryan's submission, considered collectively, the errors in questiondemonstrate that the trial was unfair and that accordingly there has been a miscarriageof justice.Mr George's appeal[41] Mr George's appeal also involves a challenge to the Judge's directions on intentand the question trail. In addition, he challenges the admissibility of Mr Putt's hearsaystatement, and the admissibility of the evidence of a Mr Kamoto.66 A ground of appeal concerning the direction the trial judge gave the jury on party liability wasabandoned.[42] We turn first to address Mr Solomon's application to adduce fresh evidence.We then consider arguments raised about the admissibility of various items of evidencebefore addressing concerns related to the conduct of the trial.The new evidence[43] The new evidence Mr Solomon seeks to adduce consists of an affidavit from aMs Fairlane Henare, also known as Fairlane Collier.[44] Ms Henare was an associate of Mr Ratima and other members of the Tribesmengang including Mr Paruru whom she knew as Peneki. It will be recalled that Mr Paruru(whom for ease of reference we will refer to as Peneki in the rest of the judgment) wasthe patched gang member for whom Mr Ratima was prospecting.[45] It will also be recalled that Peneki gave evidence at the trial. He said he wasat the gang pad at between 10.30pm on the Saturday of the weekend Mr Ratima wasassaulted and left around 3am to buy some bread on his way home. He said Mr Ratimawas the only other person at the pad and they watched some movies in the lounge.When he left the pad at 3am, Mr Ratima was fine.[46] In her affidavit filed in this Court, Ms Henare says Mr Ratima's death wastalked about quite widely amongst "our group" and "lots of people" talked about theevents leading up to it. Ms Henare claims to have been told that it was Peneki whoset Mr Ratima up to be killed.[47] The salient features of the information she claims to have heard, including shesays from Peneki himself, are:(a) A fight had broken out between Mr Ratima and Mr George's brotherSid when Mr Ratima had failed to open the gates of the pad on theSaturday evening after a group of gang members had returned from theconcert.(b) Mr Ratima had given Mr George's brother Sid a hiding and whenMr Ratima was winning "a bunch of other boys", around seven to ninein total, jumped in and attacked Mr Ratima.(c) On the orders of Peneki, Mr Ratima was beaten and tortured.(d) The beating went on for ages and involved Mr Ratima being put on abarbecue and cigarette smokes put out on him.(e) They were all high on drugs and pissed and as a result it got out of handand it went too far.(f) She never heard anyone other than the police say Mr Solomon wasinvolved.(g) Mr George was there when Mr Ratima got hurt and was the person whohad his reasons for hitting on Mr Ratima.(h) The reason for the beating was because of the "Sid thing" and alsobecause Peneki was sick of Mr Ratima "fucking up" as a prospect andembarrassing him.(i) There were around nine people involved in beating Mr Ratima.(j) Peneki left the pad at one point to get some bread and when he returnedMr Ratima was "fucked". Peneki freaked out and ordered the others toget rid of the body. But his orders were disobeyed and Mr Ratima wastaken to the hospital instead.[48] Mr Solomon's appellate counsel were alerted to Ms Henare's claims afterCrown disclosed a transcript of an interview made on 12 October 20177 during a police7 The transcript of the interview shows the date as 12 November 2017. However, that appears to bean error because the officer conducting the interview commences it by noting it is Thursday12 October 2017. 12 October 2017 was a Thursday but 12 November 2017 was a Sunday. It isunlikely the officer would have got both the day of the week and the month wrong.interview about an unrelated matter. By 12 October 2017, the trial of Mr Solomon andMr George had already taken place.[49] Ms Henare however claims to have talked to the police about who was said tobe responsible for Mr Ratima's death prior to October 2017.[50] The first occasion was shortly after Mr Ratima's death. According toMs Henare, the interview lasted 45 minutes to an hour. She was asked whether sheknew anything about the death and replied no because she didn't at that time.However, despite not knowing anything, she says she did go on to tell police on thisfirst occasion that she knew Mr Ratima was prospecting under Peneki, that Peneki hadhad enough, everything turned to shit and two prospects were supposed to get rid ofMr Ratima but did not.[51] There is no record of Ms Henare making those statements implicating Penekiin the death of Mr Ratima to police in 2016.[52] The second occasion is said to have been when she was interviewed by policeabout an allegation of assault and theft made against her by her landlady. Ms Henareclaims police told her they could make all this go away if you talk about Mr Ratima.She says she told them she still didn't know anything but told them what she had heard.Ms Henare does not specify what it was she told police that she had heard, other tosay she told them "all of that stuff".[53] Police records indicate that police spoke to Ms Henare on 9 May 2016 about acomplaint of assault made by her landlady. There is no record of her saying anythingabout Mr Ratima. She was not spoken to about an allegation of theft. That was a latercomplaint made by the landlady on 8 June 2016. The theft file was closed due toinsufficient evidence without police ever talking to Ms Henare about it because theycould not locate her.[54] The police interview of Ms Henare in October 2017 came about because shewas a suspect in a a serious assault against the same landlady, June. It was allegedMs Henare had struck June on the head with a hammer.[55] During the course of the 2017 interview, Ms Henare falsely denied the hammerallegation and provided what can fairly be described as an elaborate account of havingbeen double crossed by Peneki which had resulted in a fracas during which thecomplainant was wounded. Although Ms Henare admitted throwing the hammer atthe complainant, she denied it ever hit her and contended that it was Peneki who didthe wounding.[56] In order to bolster this false version of events, she told police the reason shewas being set up by Peneki was because she had spoken to police about the death ofMr Ratima. Then later in the interview when asked to explain the account of fourother witnesses identifying her as the person who pulled the hammer out of nowhereand struck the complainant, she told police it was because they were all scared ofPeneki, knowing what he did to Mr Ratima. That included her partner who was alsoscared because of how Peneki set Mr Ratima up to be killed.[57] In the course of the interview, Ms Henare did not provide any details about thekilling of Mr Ratima other than to say "apparently" it was because Peneki found outMr Ratima had been making a lot of money on the side that he wasn't giving to theclub and he was killed for that. She did not tell police how she came to know this.Nor did she mention that she had told police of Peneki's involvement before. In fact,the implication from what she says is that she was claiming she didn't tell police thatbefore but that Peneki may think she did.[58] Subsequently, Ms Henare pleaded guilty to causing grievous bodily harm andwounding with intent to injure. She was sentenced to a term of imprisonment.[59] After receiving a copy of her 2017 police interview, appellate counselinstructed an investigator to make inquiries of Ms Henare. The investigator says heworked with Ms Henare in prison to prepare the affidavit.[60] On appeal, Ms Tulloch who argued this part of Mr Solomon's appeal,submitted that this new evidence was significant because it diminished the Crown casethat it was just the two appellants and strengthened the possibility raised at trial thatsomeone else was responsible for Mr Ratima's death. It thus raised the possibility ofa different verdict and so demonstrated there had been a miscarriage of justice.Analysis of the new evidence[61] The principles governing the admission of new evidence on appeal are that theevidence must be fresh, credible and cogent.8[62] Ms Henare's evidence is fresh in the sense that trial counsel had no way ofknowing about the statements she made to police on 12 October 2017 which was afterthe trial.[63] On the other hand, at trial Mr Solomon (and Mr George) never disputed beingpresent at the pad with TH at 5 am, never disputed being there when the messy fightbetween TH and Mr Ratima took place and never disputed being there at the timeMr Ratima was attacked. Defence counsel also never put to TH that anyone else otherthan the appellants and the unknown fourth man were outside at the time and/orinvolved. It was also never put to TH or Peneki himself that Peneki was at the padand controlling events. Yet if all of that were true, that would have been informationknown to Mr Solomon (and Mr George) because they were there. Further, unlike TH,there is no doubt the two appellants knew Peneki. They, unlike TH, must also haveknown who the fourth man was who was driving the car.[64] It follows that this new evidence is not in fact fresh. In the absence of anywaiver of solicitor-client privilege, we are not prepared to speculate that Mr Solomon'strial counsel may not have followed instructions nor are we prepared to speculate thatif trial counsel was following instructions why Mr Solomon may have given theinstructions he did. Contrary to a submission made by Ms Tulloch, it is not a sufficientanswer to say that had trial counsel had the benefit of Ms Henare's evidence, thecross-examination would have been different.[65] Further, in any event, regardless of whether the evidence is fresh, we havecome to a clear view that the evidence is not credible or cogent.8 R v Bain [2004] 1 NZLR 638 (CA) at [22]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273at [117]–[119][66] We say that for the following reasons.[67] First, the evidence is inherently unreliable being essentially an amalgam ofinformation — much of it hearsay — garnered from several different sources over aperiod of time. There are also internal contradictions. In one part of the affidavit,Ms Henare claims Peneki told her there were around nine people involved in beatingMr Ratima. In a later section, she says Peneki "and others" had said that the personwho inflicted the actual injuries on Mr Ratima was Mr George.[68] It is also a somewhat garbled account. It combines Peneki setting Mr Ratimaup to be killed as well as a spontaneous fight. Sid was a patched member.On Ms Henare's account, he started the fight due to poor guard duty and for Mr Ratimato have supposedly then given him a hiding would have required Mr Ratima toconsciously decide not to follow the gang code, a big call for him to have made. It isimplausible that Peneki could be such a mastermind to have contemplated all thathappening in advance.[69] Secondly, the evidence has a dishonest genesis. The 2017 allegations aboutPeneki were made in order to bolster a false story. Further it was a false story that likethe present one also involved an allegation about Peneki setting people up and beingthe one who did the wounding. We do not accept the allegations in relation to theRatima homicide were ever raised with police before the 2017 interview. It would bereasonable to expect Ms Henare to have said in the 2017 interview that she has toldpolice this before if she had. But, as already mentioned, she did not say that. We alsoconsider it highly implausible that in the middle of what was a difficult homicideinvestigation, the police would not have recorded and actively pursued the allegationsagainst Peneki if they had been made in 2016. We consider it much more likely thatMs Henare has appreciated that her claims might carry more weight if they were nottarnished by the context of the November 2017 interview and so has falsely stated theywere raised with police earlier.[70] Thirdly, critical aspects of the information in the affidavit are demonstrablywrong and inconsistent with unchallenged evidence.[71] Importantly in particular, Ms Henare's affidavit is not consistent with themedical evidence. Neither pathologist noted burn injuries or any signs of tortureincluding injuries consistent with the use of weapons. Contrary to another submissionmade by Ms Tulloch, the fact the pathologists could not with certainty tell from thebruising that all the injuries had happened at once does not logically detract from theabsence of evidence of a sustained beating of the sort described by Ms Henare asoccurring on 21 February 2016.[72] Ms Tulloch points out the affidavit's reference to seven to nine men beinginvolved is consistent with Ms McDougall's evidence of seeing what she estimated as12 men — could have been more, could have been less — leaving the pad as shearrived at approximately 5.18 am.[73] That may be so, viewed in isolation, but the remainder of Ms Henare'snarrative is problematic. The man on the ground seen shortly after 5.18 am with thewhiskey bottle alongside must have been Clayton Ratima. He was still lying thereafter 7 am with a blanket giving the impression he was asleep when Ms McClutchievisited. If Peneki had thought once he returned from getting some bread thatMr Ratima was dead and ordered the body to be disposed of, it does not make sensewhy he or those who supposedly disobeyed him would have just left the body on theground with a bottle and a blanket before deciding to disobey him and eight hours latergo to the hospital instead.[74] Ms Henare's account is also inconsistent with the unchallenged evidence thatit was two patched members and not two prospects (over whom Peneki would havehad authority) who took Mr Ratima to the hospital.[75] We note too that Ms Henare says "lots of people" in her circles talked aboutthe events that led to Clay's killing but she never heard anyone say that Mr Solomonwas involved. That seems very unlikely seeing as how it was his vehicle that was usedto transport Mr Ratima to the hospital and even more telling there was unchallengedevidence that Mr Solomon himself said to police that he knew "everyone" was sayinghe was involved.[76] In light of all the above, we have come to a clear view that the evidence doesnot satisfy the test for admitting new evidence on appeal and that it would not be inthe interests of justice to admit it. The application for leave is accordingly declined.Mr Putt's hearsay statement[77] This is a ground of appeal advanced on behalf of Mr George.[78] Mr Putt's hearsay statement was admitted in evidence as the result of a pre-trialruling by Downs J.9 Mr George sought leave to appeal that ruling on the groundDowns J had erred in declining to make an oral examination order to permit contraryevidence to be heard at the pre-trial hearing. This Court held that such an argumentwas untenable and declined leave.10 It was not necessary for the Court to engage inthe substantive merits of Downs J's decision and therefore we accept that the usualconstraints on re-visiting earlier decisions of this Court are not applicable.11[79] In determining whether to admit the statement, Downs J first consideredwhether the circumstances relating to it provided reasonable assurance of its reliability.The Judge held that it did relying on the fact that it was a formal written statementsigned by Mr Putt and made by him in the knowledge it could be used in theseproceedings and in the knowledge of the legal consequences of making a falsestatement.12 As Downs J further observed, Mr Putt would have known too that byallegedly "narking", he had "crossed one of the underworld's few bright lines".13[80] The Judge also relied on the fact the statement had been made at a time whenthe events in question were still fresh as reflected in the detail Mr Putt was able toprovide including naming 13 other attendees at the meeting.14 The Judge was alsosatisfied there had been no inducement to make the statement and no suggestionMr Putt was under the influence of drugs or alcohol at the time.159 R v Solomon [2017] NZHC 1148.10 George v R [2017] NZCA 318.11 For a discussion of the approach taken when it is sought to relitigate previous pre-trial decisionsof this Court on a conviction appeal, see Winders v R [2018] NZCA 277, [2019] 2 NZLR 305 at[47]–[49].12 R v Solomon, above n 9, at [28].13 At [26].14 At [28].15 At [22].[81] The Judge acknowledged that Mr Putt who in 2016 was aged 32 had a criminalhistory of dishonest offending including a significant number of burglaries and theftconvictions. However, this was outweighed by the other factors which in the Judge'sassessment strongly favoured a determination of threshold reliability.16[82] Having reached that conclusion, the Judge then turned to the second stage ofthe inquiry namely whether the probative value of the evidence was outweighed bythe risk it would have an unfairly prejudicial effect on the proceeding. He consideredthat this was not a case where the matters identified by the appellants as affectingreliability could only be addressed in cross-examination of Mr Putt. For example,information about the circumstances in which the statement was taken, namely thatMr Putt was facing charges himself and wanting assistance from the police to get bail,as well as information about Mr Putt's criminal record could all be put before thejury.17[83] The Judge was further satisfied that any remaining risk of unfair prejudice innot having Mr Putt available for cross-examination could be sufficiently mitigated byjudicial direction.18[84] At trial, the trial Judge, Hinton J, gave the jury the standard hearsay direction.She instructed the jury to treat the statement with caution and reminded them that ithad not been tested by cross-examination.[85] On appeal, no issue was taken with Hinton J's direction. Rather the focus wason the correctness of the pre-trial decision. Counsel for Mr George, Mr Gotlieb,advanced a number of reasons why in his submission that decision was wrong.[86] First, he pointed out that Mr George was not actually named by Mr Putt asbeing in attendance at the meeting. Mr Putt referred to a "Memphis" identifying himas "Mana Diamond".16 At [27]–[28].17 At [35].18 At [36].[87] This argument is without merit. There was ample evidence establishing thatMr George went by the name of Mana, was known as Memphis and his brother wasSid Diamond.[88] Secondly, Mr Gotlieb argued that the Judge gave insufficient weight to the factMr Putt may have been motivated to make a false statement in order to get a favourablebail outcome. However, the evidence was that the officer taking the statement hadcategorically told Mr Putt before he made his statement that the police could not andwould not assist him with his bail application.[89] Another argument raised by Mr Gotlieb was that the Judge failed to take intoaccount an internal inconsistency in the statement when considering the unfairprejudice caused by not being able to cross-examine Mr Putt. Mr Putt says in onepassage that Denz (Mr Solomon) was the one asking for someone to take the rap. Butlater in the statement, he talks about the guys that "Memphis and Denz were trying toget to take the rap."[90] Mr Gotlieb submitted this was an example of a throwaway line which wouldnormally be able to be challenged in cross-examination. We do not accept it was athrowaway line. In any event it was a matter that was easily able to be the subject ofa submission to the jury without the risk attendant on asking Mr Putt why he had theimpression it was both appellants.[91] Finally, Mr Gotlieb contended the Judge had placed insufficient weight onMr Putt's criminal record. However, while that record was certainly a relevant factorbearing on Mr Putt's veracity, it is also relevant he did not have any convictions forperjury or attempting to pervert the course of justice. We agree with the Judge thatconsidered overall the criminal record was outweighed by the indicators of reliability.[92] In short, we are satisfied Downs J's comprehensive and well-reasoned decisionwas correct. The evidence of Mr Putt's hearsay statement was properly admitted attrial and this ground of appeal is not sustainable.Admissibility of the evidence of Mr Kamoto[93] This too is a ground of appeal brought by Mr George.[94] It relates to evidence given by a Mr Kamoto which the Crown sought to adduceas propensity evidence. Mr Kamoto was a former gang prospect and good friend ofClayton Ratima. He was one of the two friends who spent time with Mr Ratima atthe pad on the Saturday evening.[95] For present purposes, the essence of Mr Kamoto's evidence at trial was that afew months before Mr Ratima's death, he saw Mr George hardening Mr Ratima up bypunching him in the shoulder. The punch was aimed at the head but blocked byMr Ratima who had put his arms up to protect his face. The force of the punch causedMr Ratima to stumble and fall. Mr Kamoto confirmed that Mr Ratima did not fightback because of the gang rules that prospects do not fight back when members punchthem. Mr Kamoto also claimed to have witnessed another similar incident involvingMr George punching Mr Ratima but did not provide any details, other than to say itwas the same thing.[96] The admissibility of Mr Kamoto's evidence had also been the subject of apre-trial ruling by Downs J.19 The Judge held that the evidence before himdemonstrated a pattern of hostility and violent conduct on the part of Mr Georgetowards Mr Ratima and therefore bore on the issue of identity. The Judge's decisionallowing the evidence to be called was appealed to this Court but leave was declined,again primarily on the procedural point that oral examination of witnesses at a pre-trial hearing is generally inappropriate.20[97] On appeal, Mr Gotlieb submitted that what Mr Kamoto had seen was of a verydifferent nature to the homicidal assault alleged by the Crown. It was more in thenature of a consensual fight and therefore had little or no probative value. The factMr George might have been a person who was prepared to engage in rough play19 R v Solomon, above n 9, at [39]–[64]. That judgment also granted the Crown's application toadduce the evidence of another propensity witness to similar effect. However, her evidence wasnot led at trial.20 George v R, above n 10, at [26]–[27].fighting did not demonstrate a willingness to use lethal force in the company ofanother. While the evidence had little or no probative value, it was unfairly prejudicialto a high degree. It should have been excluded.[98] Contrary to a submission made by Mr Gotlieb, it appears that the evidenceMr Kamoto gave at trial differed in some significant respects from the witnessstatement that was before Downs J. According to the latter's decision, Mr Kamotohad stated that Mr George and another gang member would pick on Mr Ratima andshin kick him while drunk. He also described seeing Mr George give Mr Ratima "ahiding over nothing".21[99] At trial however, when asked what his impression was of how Mr Ratima wastreated by other members of the gang, for example, were they good to him, Mr Kamotoreplied "all good". They would, he said, give Mr Ratima "shit" but it was just playfighting and joking around. He also initially claimed not to remember the punchingincident involving Mr George but after refreshing his memory from his witnessstatement described it as "sparring", a "harden up thing", and "rough foreplaying." Hedid not use the phrase "hiding over nothing". In cross-examination, he also agreedthat play fighting was something that often went on at the pad and that it was just aform of training to keep prospects in check, to get ready for a real fight. He also saidit was not serious fighting, just play fighting.[100] In her closing address, the prosecutor submitted the evidence showed thatMr George had got the better of Mr Ratima before, he had shown him who the bosswas in a ritual yet forceful fight where Mr Ratima also wasn't allowed to fight back.Mr George was able to knock him off his feet on that day too.[101] For his part, trial counsel for Mr George submitted the jury should put theevidence to one side as of no consequence. It was just about play fighting and notindicative of any long standing dispute between Mr Ratima and Mr George. He alsoreminded the jury that a former girlfriend of Mr Ratima had testified that, in herthree year relationship with Mr Ratima, she had never seen Mr George being violenttowards Mr Ratima or beat him up.21 R v Solomon, above n 9, at [39].[102] The trial Judge repeated the defence submissions in her summing up but didnot give a propensity direction.[103] On the basis of the brief of evidence that was before Downs J, we consider hisdecision to allow the Crown application was correct. However, although Mr Gotliebsubmitted that the evidence given by Mr Kamoto at the trial was "more or less" thesame as that before Downs J, in our view it is clear that Mr Kamoto did not fully comeup to brief. Indeed, in the absence of evidence that Mr George was the only gangmember who participated in rough fighting with prospects and/or Mr Ratimainvolving forceful punches aimed at the head or that he was the only gang memberable to knock a large man down with a punch, we consider the only relevance of theevidence was as evidence of general gang violence, practices and rules. It followscontrary to a submission made by the Crown, that we consider its probative value inrelation to the identity of which gang member attacked Mr Ratima to be very low.[104] That of course raises the issue of whether the trial Judge should have told thejury to ignore the evidence or should have explained its limitations and the use theycould make of it and instructed them not to reason that because Mr George hadpunched Mr Ratima before, he must have done so this time.[105] However, we have come to the conclusion that the limitations of the evidencewere self-evident and would have been obvious to the jury. Although it was relied onas an item of supporting evidence by the Crown, it was not given any prominence andonly rated a brief mention in the various closing addresses and the summing up.Its admission was not capable in our view of affecting the outcome of the trial nor didthe failure to give a specific direction render the trial unfair. For completeness, wenote that the Judge did give the jury a warning about not allowing any prejudices theymight have about gangs to influence them.Admissibility of statement made to police by Mr Solomon on 23 February 2016[106] During the trial, Mr Solomon unsuccessfully sought to exclude evidence of astatement he made to a Detective Ralph on 23 February 2016.22 23 February was theday after Mr Ratima had been declared brain dead but was still on life support.[107] By that time, the police had ascertained that Mr Solomon was the owner of thevehicle used to transport Mr Ratima to the hospital but they had not yet recovered thevehicle itself. A constable had spoken to Mr Solomon over the weekend about thevehicle and Mr Solomon's movements. The officer had made notebook entries of theirconversation but had not obtained a signed statement.[108] Detective Ralph's evidence was to the following effect.[109] He was tasked on 23 February 2016 with locating Mr Solomon to take awitness statement from him regarding the fact his vehicle had been used and to see ifhe had any information that might assist in the inquiry. At that stage there was noinformation to suggest Mr Solomon had been involved in the assault and he was notregarded as a suspect.[110] When the detective located Mr Solomon, the latter was initially hostile and toldhim to go away. In Detective Ralph's experience of interactions with gang members,that was not an unexpected response. He told Mr Solomon he needed to know aboutthe use of his car and (as he later explained at a voir dire) tried to appeal to his decencyby stressing the importance of the information given Mr Ratima's extremely serioussituation. He also informed Mr Solomon that he might be liable for arrest as a partyto the assault if he were later found to have assisted persons involved for example bythe use of his car.[111] Mr Solomon agreed to go to the police station where he was taken to a witnessinterview room and a statement was taken on a witness statement form. A witnessstatement form was used because Mr Solomon was not a suspect and there was no22 R v Solomon HC Auckland CRI-2016-092-12807, 8 July 2019.information to suggest he was involved in the assault. Because of that, he was alsonot read his rights nor was he cautioned.[112] The statement read as follows:"I am the registered owner of a Honda Odyssey motor vehicle with theregistration DBK440.On Friday the 19th of February 2016 I gave this vehicle to a guy named ClaytonNGAHA to use.I have not used or seen the vehicle since. I do not know where the vehicle is.I do not know what happened to Clayton. I am not involved and I don't knowwho is."[113] The grounds of the application to exclude the statement were that it had beenimproperly obtained because, in breach of Mr Solomon's rights, Detective Ralph hadnot cautioned him.[114] After conducting a voir dire in which only Detective Ralph gave evidence, theJudge held the evidence had not been improperly obtained and was admissible.She further held that even if it had been improperly obtained, the evidence should beadmitted under s 30 of the Evidence Act 2006.[115] On appeal, Mr Solomon's counsel argued that Mr Solomon was effectivelycompelled to go to the police station and felt pressured to make the statement becauseof the threat of arrest. Had it not been for that threat and the failure to remind him ofhis rights, he would not have provided the statement.[116] However, that submission is simply not sustainable in light of the evidencegiven by Detective Ralph at the voir dire. That evidence amply justified the Judge'sfinding that the advice about liability to arrest did not amount to a suggestion it wascompulsory to answer police questions, that Mr Solomon got into the car of his ownaccord, that he was never under any compulsion, that he could not have felt he wasunder compulsion and that he was not detained.[117] In particular, when asked how it was that Mr Solomon went from being abusiveto hopping voluntarily into the car, Detective Ralph explained that it was commonwhen dealing with gang members for there to be an initial front of hostility but that hehad found from experience that if you just keep talking to them and explain there is avery real reason for them to talk to you, they will start talking back normally. He saidMr Solomon was fine to deal with from the point he was in the vehicle and remainedcalm throughout. The reference to a possibility of arrest was not a threat of arrest, itwas a threat he could potentially be arrested if he were found to be liable for assistingpeople by letting them use his vehicle.[118] In his submissions, counsel Mr Ryan relied on a dissenting judgment of MallonJ in W v R.23 In W, Mallon J found on the facts of that case that there had not been atrue waiver of rights in circumstances where although the appellant was a seasonedcriminal and aware of his rights, his claims to have felt under pressure whenquestioned by police were plausible.24 However, not only was that finding a minorityview, it was based on evidence given by W himself. In contrast, in the present case,Mr Solomon did not give evidence. And unlike W he was not being accused of murder.There was no evidence in this case from which any inference that he felt under pressurecould properly be drawn.[119] Finally, we note that the written statement provided to Detective Ralph wassubstantially the same as the statements Mr Solomon had previously made to theconstable about the car on the Sunday as recorded in the constable's notebook.[120] We conclude the statement made to Detective Ralph was properly before thejury and that this ground of appeal lacks merit.Closing address of prosecutor[121] Mr Solomon takes issue with a submission made by the prosecutor in herclosing address which he contends was incorrect and improper.[122] The impugned comment relates to the evidence of the defence pathologist whogave his evidence from the United Kingdom by AVL. It will be recalled that thepathologist Dr Hamilton opined that the fatal brain injuries could have been caused by23 W (CA226/2019) v R [2019] NZCA 558.24 At [142]–[143].a fall. He supported that opinion by reference to photographs which he said showedan abrasion on the back of Mr Ratima's head.[123] In cross-examination, the prosecutor put to him that the abrasion was in fact inthe nape of the neck and referred him to Dr Vertes' post-mortem body sketch.Dr Hamilton indicated he did not have the sketch, only photographs. There was thena brief adjournment while the sketch was sent to Dr Hamilton. The sketch recordedan abrasion in the nape of the neck and no other abrasion on the back of Mr Ratima'shead. When his evidence resumed, Dr Hamilton did not resile from his opinion aboutthe location of the abrasion. He preferred to rely on the photographs.[124] Mr Solomon's complaint on appeal is that the prosecutor unfairly told the juryin closing that Dr Hamilton had not seen the sketch plan before the trial.The submission is said to have been without foundation because it was never put toDr Hamilton and it unfairly undermined his evidence.[125] What the prosecutor said was:Dr Hamilton, when first questioned about the sketch plans, said that he didn'thave them. Clearly, it appeared he hadn't reviewed them previously or, if hehad, he hadn't recalled that. We took a short adjournment of the trial to enablehim to receive them but, even after he'd had a chance to look at them, herefused to accept that he might have been wrong on this point. The Crownsuggest he may have, in fact, been dogmatic on it, simply refusing to concedea point that he really should have, and that was despite his concession at thevery beginning that he accepted Dr Vertes documentation was accurate andthat he accepted the descriptions of the injuries that she had given as accurateand that the physical realities of what was present during the examination wereaccurate.[126] Given what had unfolded at the trial, we consider the submission whichpostulated two alternative inferences was available and proper. We reject this groundof appeal.The Judge's direction on intent and the question trail[127] Both appellants submit the Judge's direction on murderous intent wasinadequate and that the question trail she provided to the jury was defective.[128] Mr Gotlieb for Mr George contends the Judge's explanation and treatment ofintent was unhelpful and confusing and may well have led the jury into error. He alsoadopts and endorses the criticism made on behalf of Mr Solomon that the Judge shouldhave instructed the jury on the meaning of recklessness. Both appellants furthercontend that the deficiencies in the direction on intent were compounded by theJudge's error in combining both defendants into one series of questions in a compositequestion trail.[129] The Judge's directions on intent were structured around the question trail.[130] The first question addressed the issues of assault and causation. It asked thejury whether they were sure that Clayton Ratima was assaulted at the Tribesmen padon 21 February 2016 by being punched multiple times in the head and neck causingbodily injury to him and later his death. As the Judge explained to the jury, thatinvolved consideration of the evidence of the pathologists and whether there was areasonable possibility the death had been caused by a fall.[131] The question went on to say that if the jury's answer was "no", thenMr Solomon and Mr George were not guilty of murder and not guilty of manslaughter.If the answer was "yes", then the jury needed to go to Question 2.[132] Question 2 addressed the issue of identification of the defendant's respectiveparticipation as either principal or party. Question 2 read:Are you sure that Mr Solomon and Mr George (and no one else) EITHERintentionally committed the assault on Mr Ratima that caused bodilyinjury to him and later his death OR intentionally assisted in the assaultby participating in it?[133] The question was followed by a note that if the jury considered there was areasonable possibility that someone else either intentionally committed the assault orintentionally assisted in the assault, they were to find both defendants not guilty ofmurder and not guilty of manslaughter.[134] The question trail continued:If your answer in respect of Mr Solomon is NO, find both Mr Solomon andMr George not guilty of murder and not guilty of manslaughter.If your answer in respect of Mr George is NO, find both Mr George andMr Solomon not guilty of murder and not guilty of manslaughter.[135] Conversely if their answer in respect of both Mr Solomon and Mr George was"yes", then they were to go to Question 3 and Question 4.[136] Questions 3 and 4 were about murderous intent. Question 3 related only toMr Solomon and Question 4 in identical terms related to Mr George.[137] Question 3 read:Are you sure that Mr Solomon:(i) intended to cause Mr Ratima bodily injury (or knew thatMr George intended to cause him bodily injury, likely tocause death, and was reckless as to whether death ensued);AND(ii) knew that the injury was likely to cause death; AND(iii) was taking a conscious risk that death would ensue?If your answer is NO to any part of question 3, Mr Solomon is not guilty ofmurder but guilty of manslaughter.If your answer is YES to all parts of question 3, find Mr Solomon guilty ofmurder.(Footnote omitted.)[138] The Judge told the jury that Questions 3 and 4 required them to determine eachof the defendant's state of mind at the time of the assault. She went on to say:[119] These questions require you to determine each of the defendant's stateof mind at the time of the assault. A state of mind is a question of fact, butyou have to answer it from inferences from the surrounding circumstances.I have talked to you earlier about inferences and how careful you have to bewith them.[120] When you look at intention, you should consider what Mr Solomonand Mr George did and said according to the evidence, such evidence as youaccept, before, during and after the incident to see what that evidenceestablishes about their state of mind. So usually the most telling evidence asto a person's state of mind is the nature of their acts or actions or words at thetime.[121] The Crown points to the medical evidence of Mr Ratima beingpunched multiple times in the head and neck, if that is what you found, whichyou will have done if you are looking at these questions, the head and neckbeing the most vulnerable part of the body.[122] The Crown also points to [TH's] evidence that the defendants calledhim a fag after he pulled out of the fight. They say that shows an intent to domore than just the messy fighting that [TH] was engaged in, according to[TH's] evidence.[123] You will need to consider whether a statement such as that could beevidence of intent to cause a bodily injury likely to cause death. It is up toyou whether you consider all of the facts leave you sure of the answers to theindividual questions 3 and 4. I remind you again that Mr Solomon andMr George are entitled to the benefit of the doubt. So if your answer is no toany part of question 3, Mr Solomon is not guilty of murder, but is guilty ofmanslaughter and that flows from the fact that you have answered yes to theprevious question. The same then applies, not necessarily the same answer,but the same question and consequence follows in question 4. If your answeris no to any part of question 4, Mr George is not guilty of murder, but guiltyof manslaughter flowing from the answer to the previous question, i.e. toquestion 2. If your answer is yes to all parts of question 4, then you findMr George guilty of murder.[139] In support of his contention that these directions were inadequate, Mr Ryanreferred us to authority that the s 167(b) definition of murder under the Crimes Act isconcerned with a particular kind of risk taking, namely conscious appreciation of thelikelihood of causing death rather than a degree of knowledge on the defendant's partin some lesser or vague sense, such as possession of the necessary general knowledgeto have appreciated the risk if he had thought about it.25 As we understand it,Mr Ryan's contention is that the Judge should have provided an exposition ofrecklessness presumably along those lines.[140] Mr Ryan says further that combining the the two defendants in one questiontrail would have created further confusion and misled the jury into thinking theyshould consider the two defendants in all respects together and thus if one was foundguilty then the other one would be too.[141] Mr Ryan also submitted that "the inadequacies present in the Judge's directionof murderous intent and the error of combining both defendants in one series of25 R v Harney [1987] 2 NZLR 576 at581 (CA); and R v Dixon [1979] 1 NZLR 641 (CA) at 647.questions collectively means there is a real risk the defence theory was not properlyconsidered."[142] We do not accept those submissions in the context of this trial and havingregard to the defence theory that was run.[143] The defence theory for both appellants was very much focused on the identityof the true perpetrators. As mentioned, the defence for Mr George was expressly statedto be that "Mr George just was not involved in the assault on Mr Ratima at all".For obvious reasons, questions of intent and recklessness were accordingly onlybriefly mentioned. As submitted by the Crown on appeal, there was no competingdefence case on mens rea available to be put.[144] In closing, trial counsel for Mr Solomon did not specifically address murderousintent. Rather the focus was on reasonable doubt and the inadequacies of the evidenceregarding how Mr Ratima had come to be fatally injured.[145] Trial counsel for Mr George did specifically mention murderous intent in hisclosing but only briefly, making three points. First, he submitted relying onDr Hamilton's evidence that it was very possible this could have been just a one hitmanslaughter where someone punched Mr Ratima and he fell back onto somethinghard. Secondly, he argued the absence of any use of a weapon was consistent with alack of any murderous intent. The third point was the absence of any evidence of amotive on the part of Mr George to want to kill Mr Ratima.[146] The Crown was not of course required to prove motive and in relation to theparticular form of murderous intent it relied on, motive to want to kill was largelyirrelevant. Further, by the time the jury reached Questions 3 and 4 of the questiontrail, they would have already excluded the possibility of there being a fall or any othercause of death other than an attack with significant force to the head and neck.They would also have already rejected the possibility of there being any otherassailants. To have reached Questions 3 and 4 would have meant too that they hadaccepted TH's account of those aspects of the appellants' conduct from which aninference of murderous intent could be drawn, such as their rushing at Mr Ratima.[147] In our view, in the circumstances of this case, little purpose would have beenserved by the Judge defining recklessness by using some other form of words thanthose contained in the question trail. The phrases the Judge used were knowing theinjury was likely to cause death and with that knowledge taking a conscious risk thatdeath would ensue. In our view, that adequately conveyed the concept of recklessness.None of the authorities cited by Mr Ryan suggest otherwise. Nor for that matter didthe experienced defence counsel at the time, despite having been consulted over thequestion trail and despite being given an opportunity to raise any concerns after thesumming up but before the jury retired for its deliberations.[148] In this case, proof of the requisite intent was of course entirely dependent onthe drawing of inferences but in our view notwithstanding the absence of a weaponthose inferences on the evidence were irresistible — in particular, the inferences to bedrawn from the medical evidence. The blows were all concentrated in the mostvulnerable parts of the body, making it clear that whoever assaulted Mr Ratima haddeliberately targeted that area. Further, the fact of the two fractured vertebrae alsomeant it was clear the blows had been inflicted on those parts of the body with verysignificant force. Mr Ratima was a big man — 190 centimetres in height and weighing133 kgs. As already mentioned, there was also uncontested evidence that a prospectlike Mr Ratima was not permitted to respond and that was something the appellantswould have known. In all those circumstances, a finding of the requisite intent waswe consider inevitable.[149] As regards the structure of the question trail, we accept that other trial judgesmay have provided the jury with separate question trails. That was certainlysomething trial counsel for Mr George advocated for at the time. However, in ourview it was not an error to have combined them. Further, the questions werethemselves concise and clear and we are satisfied would not have confused the jurynor led them astray and taken them down illegitimate pathways.[150] Importantly, the Judge also made it very clear in oral directions that eachappellant was to be tried solely on the evidence admissible against him. The Judgeexplained that meant the jury was required to consider the position of each defendantseparately and come to a separate considered decision about each. She also stated thatbecause they were jointly charged that did not mean they must both be guilty or bothnot guilty. The same message had been strongly conveyed by all counsel and ofcourse, as already mentioned, the questions on intent were individualised.[151] We are satisfied that the Judge's directions on intent were sufficient in thecontext of the trial and that the use of the composite question trail was not an errorwarranting appellate intervention.Summary of conclusions[152] In relation to Mr Solomon's appeal, we decline to admit the evidence ofMs Henare on appeal and in our view none of the other grounds of appeal whetherviewed individually or collectively warrant appellate intervention. There was no errorin the Judge's question trail and her directions on intent were appropriate.The prosecutor's statement in closing about the evidence of Dr Hamilton was availableto her and the witness statement made by Mr Solomon to police was properlyadmissible.[153] As regards Mr George's appeal, we have found that the hearsay statement ofMr Putt was properly before the jury and although the evidence of Mr Kamoto differedat trial from the evidence on which the original decision to admit his evidence wasbased, the giving of Mr Kamoto's evidence and the way it was treated at trial has notoccasioned the risk of a miscarriage of justice. The Judge's question trail would nothave confused the jury and it would not have resulted in them failing to consider thecase against each appellant separately. The Judge's direction on intent was adequate.Outcome[154] The application for leave to adduce the evidence of Fairlane Michelle Henareis declined.[155] The appeal brought by Vincent Mana George (CA703/2017) is dismissed.[156] The appeal brought by Denis Robert Henry Solomon (CA711/2017) isdismissed.Solicitors:Gifford Devine, Hastings for Appellant GeorgeCrown Law Office, Wellington for Respondent