WAA v R [2021] NZCA 172

WAA v R [2021] NZCA 172 [10 May 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA587/2018[2021] NZCA 172BETWEEN WUTI WELLINGTON WAAApplicantAND THE QUEENRespondentHearing: 25 March 2021Court: Collins, Ellis and Muir JJCounsel: G H Vear and C A Hardy for ApplicantC A Brook for RespondentJudgment: 10 May 2021 at 11.00 amJUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] On the evening of 19 December 1988 two men, each armed with a shotgun andwearing balaclavas, entered the owner's premises of the Northcote Motel. Inside thelounge of those premises were the owners Mr and Mrs Bell, and their 23-year-olddaughter Ms Bell. The first intruder demanded money from Mr Bell. Ms Bell thenattempted to escape but was caught in a corridor by the second of the intruders. Atthat moment, the first intruder fired a shot in the lounge at Mr Bell. He died soonafterwards. When Mrs Bell approached the first intruder, she was struck on her headwith the butt of the gun. The intruders then ransacked through the property and madegood their escape, taking a small amount of money, jewellery and a glasses case thatbelonged to Ms Bell.[2] Mr Cullen and Mr Waa were jointly charged with murdering Mr Bell, causinggrievous bodily harm to Mrs Bell and aggravated robbery. They were convicted onall charges in 1990. Now, 31 years later, Mr Waa seeks leave to challenge hisconviction for murder.[3] At the time he was charged, the evidence against Mr Cullen comprised thefollowing:(a) Mr Cullen made an admission to his partner, Ms Corbett, on 20December 1989, in which he said that he and Mr Waa had gone to themotel and that while he was out of the room, a shot was fired whenMr Bell "grabbed for the gun" held by Mr Waa.(b) The glasses case owned by Ms Bell was found at the property whereMr Cullen was living.(c) Mr Cullen made a written statement to the police on 27 January 1989,in which he said he went with a "mate" to the North Shore looking fora place to rob. He said he and his mate took loaded shotguns into themotel and that when he was restraining Ms Bell, he heard a shotdischarged in the lounge.[4] By the time of the trial, Mr Cullen's brother, "Doc" Cullen, had also become awitness for the Crown. Doc Cullen said his brother made admissions to himconcerning the roles of Mr Cullen and Mr Waa in the attack at the motel.[5] The principal evidence against Mr Waa at the time he was charged comprisedthe following:(a) There was evidence of Mr Waa's association with Mr Cullen and hisgeneral opportunity to have been involved in the crimes. He was seenwith Mr Cullen at a funeral around midday on 19 December 1988 andthey were seen arriving together at a function at Te Papapa about twohours after the attack at the motel.(b) A shoe print, formed in blood, was found on a piece of paper in themotel premises. The print was compared with a pair of shoes takenfrom Mr Waa. The forensic evidence was that the print in the motelmust have been made by the right shoe taken from Mr Waa.(c) Mr Waa made admissions to the police. On 27 January 1989, policeinterrogated Mr Waa and obtained admissions from him to the effectthat he had shot Mr Bell during a tussle when Mr Bell tried to take MrWaa's gun.[6] Mr Waa applied to be tried separately from Mr Cullen. That application wasdismissed by Thorp J on 12 October 1989.1[7] In a second pre-trial decision issued on 12 March 1990, Thorp J ruledinadmissible the admissions made by Mr Waa to the police, when he was interrogatedon 27 January 1989.2 Those admissions were held to have been extracted by the policecommitting multiple breaches of the Judges' Rules and the rights of a suspect in policecustody. The police were found to have lied to and misled Mr Waa about the evidenceagainst him, and the consequences which would flow if Mr Waa only admitted tohaving accidentally shot Mr Bell. The police also prevented Mr Waa from consultingwith his lawyer and they refused to honour Mr Waa's right to silence.[8] By the time the trial commenced on 12 March 1990, the Crown had obtainedevidence from Witness A, a prisoner who was in Mount Eden Prison during the timeMr Waa was on remand in that prison. The essence of Witness A's evidence was thatMr Waa had admitted to Witness A that he had shot Mr Bell.1 R v Waa HC Auckland T143/80, 12 October 1989 [Ruling on Severance].2 R v Cullen HC Auckland T143/89, 12 March 1990.[9] Witness A had been sentenced to 12 years' imprisonment on 27 October 1989for importing heroin. His appeal against sentence was initially to be heard before thetrial of Mr Cullen and Mr Waa. Witness A's appeal was, however, adjourned to a dateafter he gave evidence in the trial.[10] In a pre-trial hearing on 8 March 1990, Witness A gave evidence and wasbriefly cross-examined by Mr Waa's trial counsel, Mr Bungay QC. Thereafter, counselfor both defendants informed Thorp J that there would be no further challenge to theadmissibility of Witness A's evidence, but that counsel would submit that little to noweight should be placed upon the incriminatory evidence given by Witness A.[11] At the trial, Witness A said that during the time he and Mr Waa were inMount Eden Prison, Mr Waa spoke about the events on the night Mr Bell was shot.According to Witness A, Mr Cullen and Mr Waa had planned to abduct Mr Bell to findout where some krugerands (a type of gold coin from South Africa) were supposedlylocated. Witness A said Mr Waa told him that when he was in the lounge of the motel,Mr Bell moved towards him and that he, Mr Waa, "blew him away".[12] Witness A was cross-examined during the trial by Mr Bungay about hisextensive criminal history, the arrangements concerning the adjournment of his appealand the occasions he had assisted authorities by providing information supplied to himby defendants. Witness A was questioned by Mr Bungay about the likelihood that hewould be giving evidence against another prisoner, Mr Tamihere, in relation to whatthe latter had told Witness A concerning the murder of Heidi Paakkonen andSven Hoglin, two Swedish tourists who were thought to have been murdered in theCoromandel area in April 1989. Mr Bungay also asked Witness A if Mr Waa had saidhe was responsible for the murder of Mr Bush at the Red Fox Tavern, a case that boresome similarity to the murder of Mr Bell, but for which no one had been charged.Witness A said Mr Waa had indeed told him he was responsible for the Red Fox Tavernmurder.[13] Mr Waa and Mr Cullen were convicted on 19 March 1990 and sentenced tolife imprisonment for the murder of Mr Bell. On 10 April 1990 they were respectivelysentenced to concurrent terms of six and a half and five years' imprisonment foraggravated robbery and the attack on Mrs Bell.[14] On 25 October 1990, Mr Waa sought leave to appeal to this Court pursuant tothe procedure provided for in s 383 of the Crimes Act 1961. We explain that procedureat [20] to [31]. The notice of appeal/application for leave to appeal was prepared by abarrister and identified two grounds of appeal:(a) The trial Judge erred in law by not granting Mr Waa's severanceapplication.(b) New unspecified information obtained under the Official InformationAct 1982 may have undermined the credibility of Witness A if it hadbeen disclosed before trial.[15] Mr Waa's application was filed about six months out of time and, followingwhat was referred to at the time as an "ex parte procedure", Mr Waa'sappeal/application for leave to appeal was dismissed by this Court on 27 June 1991.3No reasons were recorded for this decision.[16] Mr Waa was granted parole in 2002, and in 2003 he became involved in seriousoffending. Mr Waa was convicted in the Masterton District Court on seven charges ofburglary and unlawfully taking a motor vehicle.4 He was also convicted of possessionof a shotgun and ammunition, reckless driving, using a crowbar as a weapon, theft ofa vehicle and using a vehicle to assault a police officer.5 He was recalled to prison andsentenced to four years and 11 months' imprisonment for his 2003 offending. Asidefrom the brief interlude in 2002 and 2003, Mr Waa has been in custody since his arreston 27 January 1989 for the murder of Mr Bell.[17] On 26 September 2018, Mr Waa filed an application for leave to appeal againsthis conviction for the murder of Mr Bell. His notice of appeal contended that:3 Waa v R (ex parte) per Casey, McKay and McGechan JJ.4 Waa v Police HC Masterton CRI-2004-435-21, 7 December 2004.5 Waa v Police HC Masterton CRI-2004-435-2, 21 May 2004.(a) Witness A's evidence was unreliable and ought not to have beenadmitted.(b) His trial should have been heard separately from that of Mr Cullen.Three further grounds of appeal have been added since September 2018:(c) The trial Judge's directions concerning Witness A were deficient.(d) The trial Judge's directions on joint trials were also deficient.(e) The references to the Red Fox Tavern murder were highly prejudicialand inadmissible.[18] In Waa v R,6 this Court held that it has inherent jurisdiction to revisit its 1991decision dismissing Mr Waa's application for leave to appeal and directed that theleave application be determined separately from any substantive appeal that might beauthorised. That decision was based upon R v Smith,7 which held this Court's inherentjurisdiction enabled it to revisit decisions that had resulted in appeals being dismissedfollowing the ex parte procedure; a process which had been ruled unlawful by thePrivy Council in R v Taito.8[19] In assessing Mr Waa's leave application, we shall first explain the jurisdictionfor appeals under ss 383 and 385 of the Crimes Act, and then examine the grounds ofappeal in the following sequence:(a) severance;(b) Witness A; and(c) the Red Fox Tavern murder.6 Waa v R [2019] NZCA 536.7 R v Smith [2003] 3 NZLR 617 (CA).8 Taito v R [2002] UKPC 15, [2003] 3 NZLR 577.Section 383 of the Crimes Act 1961Questions of law, fact and mixed law and fact[20] The relevant parts of s 383 of the Crimes Act provided:383 Right of appeal against conviction or sentence(1) Any person convicted on indictment may appeal to the Court ofAppeal—(a) Against his conviction on any ground of appeal whichinvolves a question of law alone; and(b) With the leave of the Court of Appeal or upon the certificateof the Judge who tried him, or before whom he appeared forsentence, that it is a fit case for appeal, against his convictionon any ground of appeal which involves a question of factalone, or a question of mixed law and fact, or any other groundwhich appears to the Court of Appeal to be a sufficient groundof appeal; [21] Thus, at the time Mr Waa's appeal/application for leave to appeal wasdismissed in 1991, distinctions were drawn between questions of law, questions offact, and questions of mixed law and fact. Questions of law could give rise to anappeal as of right, whereas questions of fact and questions of mixed law and factrequired either a Judge's certificate or the leave of the Court of Appeal.[22] The distinction between questions of law and the types of questions thatrequired leave was often not easy to discern. Authorities made it clear, however, thata ground of appeal did not constitute a question of law merely by being described assuch in the notice of appeal or in counsel's submissions.9[23] It was settled by 1990 that a decision in relation to facts might in somecircumstances give rise to a question of law. Lord Radcliffe explained in Edwards vBairstow,10 that those circumstances might arise where "there is no evidence tosupport the determination" or where, "the evidence is inconsistent with and9 R v Hinds (1962) 46 Cr App R 327 (CA).10 Edwards (Inspector of Taxes) v Bairstow [1956] AC 14 (HL) at 36.contradictory of the determination", or where, "the true and only reasonableconclusion contradicts the determination".[24] Since this Court dismissed Mr Waa's appeal/application for leave to appeal,the Supreme Court has reaffirmed the distinction between questions of law andquestions of fact.11 In R v Gwaze, the Supreme Court disagreed with the approach thatthis Court had taken when determining the scope of the ability of the Crown to appealquestions of law following an acquittal.12 Applying those cases to the circumstancesof Mr Waa's application, a question of law could arise if the trial Judge:(a) misdirected himself as to the legal requirements governing theapplication for separate trials;(b) misdirected the jury on the factors they were to consider where therewas a joint trial;(c) misdirected himself as to the legal requirements governing theadmissibility of the evidence from Witness A;(d) misdirected the jury on the evidence of Witness A; and(e) failed to properly consider and determine if the evidence about theRed Fox Tavern murder was admissible.[25] Mrs Vear, senior counsel for Mr Waa, submitted that the trial Judge's decisiondeclining separate trials for Mr Waa and Mr Cullen involved a question of law becausethe facts concerning that application were not contested and this aspect of the appealwas limited to the legal consequences that followed from those facts.13[26] The approach advocated by Mrs Vear is too simplistic. An error of lawnormally arises where a Judge fails to properly identify the law and apply that law to11 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721; and R v Gwaze [2010] NZSC52, [2010] 3 NZLR 734.12 R v Gwaze, above n 11, at [1].13 Citing Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC).the facts. Thus, the ruling on severance might give rise to a question of law if Thorp Jfailed to consider or apply the legal principles governing separate trials to the factsthat were before him. Mrs Vear properly acknowledged that there were no furtherfactual inquiries that could be made in relation to the severance issue and that hersubmissions before us addressed all of the legal arguments that she wished to make onthat topic.[27] We accept the alleged misdirections in the summing-up to the jury about thematters they were to consider in a joint trial and in relation to the jury's task inassessing the evidence of Witness A also raise questions of law. Similarly, theadmissibility of Witness A's evidence and the admissibility of the reference to the RedFox Tavern murder can also be categorised as questions of law.Leave criteria[28] Under s 383 of the Crimes Act, where leave was necessary, the Court usuallyheard full argument, before granting or refusing leave, and the decision as to leave wasin effect a decision on the merits.14 Under s 392(2) of the Crimes Act, where an appealpurported to raise a question of law and the Court considered the appeal was frivolousor vexatious it could determine it without a full hearing and dismiss the appeal"summarily, without calling on any persons to attend the hearing or to appear thereon".Although no reasons for dismissing Mr Waa's appeal/application for leave to appealwere given in 1991, it is possible the Court determined the purported question of lawshould be dismissed under s 392(2) of the Crimes Act and that leave should not begranted in relation to the second ground of appeal because it was considered to bewithout merit.[29] The leave application in this case should engage the merits to the extent it ispossible to do so and be granted if the proposed grounds of appeal are shown to bereasonably arguable.15 This test is appropriate even where a ground of appeal isconfined to a question of law because the Court is exercising its discretionary inherentjurisdiction to remedy an injustice but should only do so where an applicant14 R v Ross [1948] NZLR 167 (CA).15 Miller v R [2020] NZCA 79 at [7].demonstrates that the outcome may have been different had the Court followed correctprocedures in the first place.[30] The "reasonably arguable" test must be applied by reference to the criteria setout in s 385 of the Crimes Act concerning the determination of appeals in 1990:385 Determination of appeals in ordinary cases(1) On any appeal against conviction the Court of Appeal shall allow theappeal if it is of opinion—(a) That the verdict of the jury should be set aside on the groundthat it is unreasonable or cannot be supported having regardto the evidence; or(b) That the judgment of the Court before which the appellantwas convicted should be set aside on the ground of a wrongdecision on any question of law; or(c) That on any ground there was a miscarriage of justice; or(d) That the trial was a nullity—and in any other case shall dismiss the appeal:Provided that the Court of Appeal may, notwithstanding that it is ofopinion that the point raised in the appeal might be decided in favourof the appellant, dismiss the appeal if it considers that no substantialmiscarriage of justice has actually occurred.[31] The proposed grounds of appeal appear to rely on ss 385(1)(b) and (c). In orderfor leave to be granted, a proposed ground of appeal must therefore be reasonablyarguable, having regard to the relevant criteria for allowing an appeal set out ins 385(1) of the Crimes Act.Delay[32] There is a further factor in this case that might, in other circumstances havebeen determinative of the leave application. That factor concerns the extraordinarydelay that has occurred in Mr Waa pursuing the application for a rehearing of hisdismissed appeal/application for leave to appeal.[33] The application that was filed in 1990 was required to be filed not later than 10days after Mr Waa was sentenced.16 It was filed approximately six months out of timeand accordingly required an extension of time to appeal under s 388(2) of the CrimesAct. The Crown does not take issue with the six-month delay in filing the applicationfor leave to appeal.[34] There was, however, a further 15-year delay between when this Court deliveredits judgment in Smith and Mr Waa filing his application for a rehearing of his dismissedappeal/application for leave to appeal. As we have previously noted, Smith establishedin 2003 the jurisdictional basis upon which Mr Waa could apply for a rehearing of hisdismissed appeal/application for leave to appeal.[35] Mr Waa has provided two explanations for his delay:(a) He says that until an arrest was made in the Red Fox Tavern murdercase, he did not want to draw attention to himself. Arrests were madein that case in 2017, and on 29 March 2021 two defendants wereconvicted of murdering Mr Bush at the Red Fox Tavern inOctober 1987.(b) A jailhouse informant in Mr Tamihere's trial was, in 2017, prosecutedin a private prosecution for perjury.17[36] Neither of these explanations is persuasive. As we note later in this judgment,there is no evidence that Mr Waa was ever at risk of being prosecuted for theRed Fox Tavern murder. Even if he were a suspect for that crime, we fail to see howthat could affect his appeal in the present case. Furthermore, the witness who wasprosecuted for giving false evidence in Mr Tamihere's trial was Witness C, notWitness A. Witness C was prosecuted after he acknowledged he gave false evidencein Mr Tamihere's trial, although he recanted that admission at a later date. Mr Waaappears to be drawing a connection between the prosecution of Witness C and hisdecision not to apply to have his leave application reinstated. It is impossible,16 Crimes Act 1961, s 388(1).17 Taylor v Witness C [2017] NZHC 2610.however, to understand how the prosecution of Witness C in 2017 could excuseMr Waa's delay in pursuing his application to reinstate his application for leave toappeal.[37] There are further concerns relating to Mr Waa's inordinate delay. A key groundof appeal concerns the admissibility of the evidence of Witness A. Part of thechallenge to the admissibility of Witness A's evidence concerns his credibility. Thiswould normally necessitate Witness A being cross-examined if Mr Waa's applicationfor leave to appeal were granted. This point was not referred to in Mrs Vear's writtensubmissions.[38] Witness A is no longer available to give evidence. He passed away on26 February 2021. This development was only revealed to us and Mrs Vear after thehearing. Nevertheless, Witness A's death is a source of profound prejudice to theparties in testing the credibility of his evidence.[39] Additionally, although Mrs Vear said she was not criticising Mr Bungay'sconduct of the trial, in reality, her attack on the way Mr Bungay asked Witness Aquestions about the Red Fox Tavern murder is a challenge to a tactical decision madeby trial counsel. Mr Bungay is also no longer available to explain his conduct of thetrial as, he passed away in 1993.[40] Thus, while we will apply the test for leave that we have set out at [29], we arevery concerned by the inordinate delay in Mr Waa pursuing his application. While theoverall interests of justice must guide us, Mr Waa's decision not to pursue hisapplication for many years flouts the fundamental principle of finality whichunderpins the statutory time limits governing criminal appeals. Those time limitsreflect the balance between the interests of an appellant and those of others connectedto the case, including victims and witnesses. Time limits in criminal trials also reflectlegislative policies concerning the resources that the criminal justice system shouldapply to entertaining challenges to convictions obtained years earlier in accordancewith the law as it was then understood.1818 R v Knight [1998] 1 NZLR 583 (CA); and CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [13]–[16].Severance[41] There are three limbs to the severance issue that Mr Waa wishes to pursue ifleave is granted for him to appeal:(a) The High Court Judge erred in law when he declined to order separatetrials for Mr Waa and Mr Cullen.(b) The High Court erred by not reconsidering severance in light ofchanges in the evidence following the pre-trial decision.(c) The "joint trial" directions given to the jury were inadequate.Pre-trial decision[42] Apart from cases involving accessories after the fact and receivers, the CrimesAct did not expressly provide for the joinder of two or more persons in one count orin one indictment.19 However, "it [was always] permissible to join in one count all orany of the participants in an offence".20[43] The following two principles governed the joinder of trials in 1990:(a) "prima facie, where the evidence of the case was that prisoners wereengaged in a common enterprise, it was obviously right and proper thatthey should be jointly indicted and jointly tried";21 and(b) "where there is such a volume of evidence against one accused, but notthe other, that it would be well nigh impossible for a jury to perform thetask of determining guilt or innocence by reference only to the evidenceadmissible against each, and the persuasive value of the inadmissibleevidence is out of proportion to the probative value of the admissibleevidence, severance will avoid injustice to one or both [accused]".2219 Section 340 of the Crimes Act provided for joinder of counts as opposed to joinder of offenders.20 Francis Boyd Adams Criminal Law and Practice in New Zealand (2nd ed, Sweet & Maxwell(NZ), Wellington, 1971) at [2699].21 R v Ross, above n 14, at 181; and R v Iremonger [1964] NZLR 517 (SC) at 519.22 R v Brown (1987) 3 CRNZ 132 (CA) at 133, citing R v Webb [1953] NZLR 595 (SC) at 597.[44] In his severance decision, Thorp J set out the principles and the authorities wehave referred to at [43].23[45] After carefully considering the evidence against Mr Cullen and Mr Waaseparately, Thorp J said:24There is less extensive evidence of joint enterprise in this case than in someof the cases where that circumstance has been considered important. Howeverit can hardly be argued, that the Crown is not entitled to put its case on thebasis section 66(2) principles may apply.[46] The Judge placed Mr Waa's alleged confession to one side and then askedhimself whether the remaining evidence against Mr Waa was such as to triggerdisplacement of the usual rule of a joint trial. He concluded:25That question is not altogether easy. However I have finally come to theconclusion that even if the confessional statements by Mr Waa should beexcluded, the remaining evidence against Waa, certainly as the footprintevidence presently stands, cannot be said to have such slight probative valuethat the prejudicial effect of Cullen's confessional statement is likely todominate the juror's minds and prevent their proper determination of the caseagainst Mr Waa.[47] Mrs Vear argued that it was unrealistic for the jury to set aside the evidencefrom Ms Corbett and Doc Cullen and only assess the shoe print evidence withoutreference to Mr Cullen's admissions to those witnesses. Mrs Vear also took issue witha comment made by Thorp J, when he suggested it may have been of benefit to haveMr Cullen's statements before the jury because it would assist Mr Waa's case that thedischarge of the gun was accidental.[48] Mr Waa's defence was that he was not one of the motel intruders. It maytherefore have been preferable for the Judge not to have considered the possibleassistance to Mr Waa in having the jury learn that the gun may have been accidentallydischarged. There can be no doubt, however, that the Judge properly stated the legalprinciples which we have set out at [43]. The Judge also carefully applied thoseprinciples to the facts before him when deciding that Mr Waa and Mr Cullen shouldbe tried together. Having reviewed the evidence and the law that applied in 1990, we23 Ruling on Severance, above n 1, at 2–3.24 At 7–8.25 At 9.are satisfied that in dismissing the severance application, Thorp J reached the onlyconclusion that was realistically available. This was a classic example of a Judgeaccurately stating the law and applying that law to the facts.[49] There is no basis upon which it could be reasonably argued that either an errorof fact or law arose from the way in which Thorp J determined the pre-trial severanceapplication.Further evidence at trial[50] Mrs Vear argued Mr Waa's position became worse at trial because of theevidence of Witness A, and Doc Cullen. She took particular exception to a commentmade by Witness A, who said that Mr Waa told him: his biggest problem was [Mr Cullen] had done some pillow talking to hiswife and told her it was [Mr Waa] who shot Rex Bell and [Mr Cullen] alsotold Doc Cullen that it was [Mr Waa] who shot Rex Bell.[51] Mrs Vear submitted there was an inevitable risk that the jury would utilise theinadmissible evidence of Mr Cullen's statements implicating Mr Waa to bolster thereliability and credibility of Witness A's evidence. She said that this risk could onlyhave been alleviated through severance.[52] We disagree:(a) The evidence that we have set out at [50] was also contained in theevidence that Witness A gave on 8 March 1990 during the pre-trialvoir dire. It did not emerge for the first time during the trial.(b) In any event, this was a case in which two men set out to commit anarmed robbery. The issue at trial was whether Mr Waa was one of thoseoffenders. His association with Mr Cullen on the day of the robberyand the presence of a footprint at the scene that matched his shoe werevery compelling evidence that justified Mr Waa being tried jointly withMr Cullen.[53] Any risk of unfair prejudice from Mr Cullen's statements which implicatedMr Waa was able to be properly addressed by clear directions to the jury not to haveregard to that evidence when considering the case against Mr Waa. We examine thosedirections at [55]–[57].[54] At trial, Mr Bungay acknowledged Witness A's evidence was admissible. Onlythe weight that the jury should place on Witness A's evidence was in issue. Wetherefore do not accept that there is a reasonable argument that the trial Judge erred bynot reconsidering severance during the course of the trial.Jury directions[55] Thorp J directed the jury regarding the statements attributable to Mr Cullen inthe following way:A good deal of the evidence is relevant and admissible against both men, butone class of evidence which is not admissible against both is evidence ofstatements made by one of the accused in the absence of the other. Thisprinciple is important in the present case because Mr Cullen made a series ofstatements to the Police and to his associates which directly or indirectlyimplicated Mr Waa. To the extent that his statements implicate him, Cullen,then of course they are material which you take into account when you areconsidering his responsibility, but they must not be taken into account whenyou are considering Mr Waa's position as they are not legally admissibleagainst him. That is a principle which is a necessary part of our legal system,because were it otherwise self-serving statements could be made by oneaccused in the absence of the other and received in evidence against the otheralthough he was not present at the time and had no opportunity to deny orcorrect them.I have not heard any counsel suggest and I cannot myself see any basis for asuggestion that any statement made by Mr Waa after the event is likely toprejudice Mr Cullen. It is in the consideration of Mr Waa's position that therule must be kept in mind. At that stage you must put aside all statementsmade by Mr Cullen oral or written.[56] Mrs Vear criticised the adequacy of these directions, saying that it wasimperative that the jury be reminded again in the Judge's summing-up of whatevidence could be taken into account in determining the primary question of whetherthe offences were committed by Mr Waa.[57] We disagree. The Judge's directions to the jury on how they should assess thestatements attributed to Mr Cullen when considering the case against Mr Waa wereclear and unequivocal. There is no basis upon which it could reasonably be arguedthat an error occurred in the Judge's directions, which would engage the criteria ins 385(1) of the Crimes Act.Witness A[58] In examining the challenges to the admissibility of the evidence of Witness A,and the adequacy of the directions given to the jury by the trial Judge concerning theway they could permissibly assess his evidence, we shall:(a) explain in further detail the background to Witness A giving hisevidence;(b) explain the key elements of the evidence given by Witness A;(c) set out the directions given by the trial Judge;(d) examine the specific challenges to the admissibility of Witness A'sevidence; and(e) examine the adequacy of the Judge's directions.Background to Witness A giving evidence[59] Witness A had an extensive history of criminal offending in Australia andNew Zealand before he was arrested on 3 May 1989 and charged with importing andpossessing approximately two kilograms of heroin for the purposes of supply.[60] Records show that Witness A left New Zealand in 1976 and went to Australia.There he entered into a de facto relationship which ended when his partner was killed.Witness A was initially charged with her murder but convicted of manslaughter forwhich he was sentenced to 13 years' imprisonment. That sentence was reduced toeight years' imprisonment on appeal. Witness A was deported to New Zealand inDecember 1980 but returned to Australia a few days later. In 1985, he was sentencedto 12 years' imprisonment for supplying heroin. At the same time, he was sentencedto a concurrent term of two years' imprisonment for possession of a firearm. Thatsentence was reduced on appeal to seven years' imprisonment. He served three yearsand three months in prison for this offending and on 23 December 1987, he was againdeported to New Zealand.[61] When Witness A was arrested in Auckland on 3 May 1989, he admitted his rolein a significant heroin importation and distribution enterprise and agreed to assist thepolice in obtaining evidence against his co-offenders by wearing a concealedmicrophone to meetings with them. This resulted in police gathering importantevidence against the co-offenders. Witness A also agreed to give evidence at the trialof two of his co-offenders.[62] Following his arrest, Witness A was remanded in custody in Mount EdenPrison. While there he befriended both Mr Waa and Mr Tamihere. Mr Tamihere wasawaiting trial for the murder of the two Swedish tourists who had gone missing on theCoromandel.[63] According to Witness A, Mr Waa and Mr Tamihere "took [him] into theirconfidence and they gave [him] crucial information which was highly incriminatingagainst themselves". Witness A passed on the information he gathered through hissolicitor to the police. He instructed his solicitor to use the information to try andnegotiate with police to have the importation of heroin charge withdrawn. However,according to Witness A, the police wanted him to plead guilty to the heroin charges inorder to maintain his credibility as a witness. Witness A said that he agreed to thisprovided the sentence he received was "kept to a reasonable scale".[64] On 26 September 1989, Witness A entered guilty pleas to the charges he faced.On 5 October, arrangements were made for Witness A to give a statement based on thenotes he had made during his conversations with Mr Waa. The notes primarilyconcerned what Mr Waa was alleged to have told Witness A about the shooting ofMr Bell. In his notes, Witness A also referred to Mr Waa as having played a role inthe Red Fox Tavern murder.[65] Witness A was sentenced in the High Court at Auckland on 27 October 1989by Thorp J. Thorp J had before him the following materials:(a) a statement to the police by Witness A dated 3 May 1989, which relatedto the heroin importation and his use of the hidden microphone whentalking to his co-accused;(b) a statement comprising 15 pages that Witness A had given to hissolicitor dated 25 September 1989, which contained information heobtained from Mr Tamihere concerning the murder investigations intothe disappearance of the Swedish tourists; and(c) a handwritten statement by Witness A relating to conversations withMr Waa concerning the murder of Mr Bell.[66] When sentencing Witness A, Thorp J said that the size of the heroin operationand Witness A's previous convictions justified the imposition of life imprisonment, themaximum sentence that was available. The Judge noted, however, that Witness A hadassisted the police in relation to the heroin operation and other matters and thataccordingly, the appropriate sentence would be one of 12 years' imprisonment. Afterreceiving that sentence Witness A filed an appeal against his sentence.[67] On 23 November 1989, Witness A met with three police officers at Mount EdenPrison and prepared a formal statement in the presence of his solicitor, concerning theinformation he had acquired from Mr Waa in relation to the shooting of Mr Bell.[68] At about the same time Witness A's solicitor sought from the police a statementconcerning the value of the information Witness A had provided to the police. Thisinformation was sought to assist Witness A's appeal. The police response was that theevidence Witness A had provided "only attains a value" once Witness A gave it to theCourt.[69] As we have previously noted, Witness A gave evidence in a voir dire hearingjust before Mr Waa and Mr Cullen's trial commenced. In his voir dire hearing, WitnessA claimed it made no difference to him whether the information he provided was givenbefore he was sentenced and that it would make no difference to his sentence. ThorpJ asked Witness A during the voir dire hearing whether there was an outstanding appealin respect of his 12-year sentence and when it was likely to be considered. Witness Aconfirmed there was an appeal but that it did not have a hearing date.[70] On 15 March 1990, Witness A applied to this Court for an adjournment of hissentence appeal. The basis of the adjournment application was recorded as being his"willingness to give evidence [and the] need [for] more time regarding otherassistance". The Crown's response is recorded as being "police would preferadjournment till after evidence [is] given".[71] Witness A gave his evidence against Mr Waa on 16 March 1990. He was thelast witness in the trial.[72] In May 1990, Witness A gave evidence against his co-offenders in relation tothe heroin importation.[73] Witness A's appeal against sentence was heard on 28 May 1990. This Courtconcluded that the assistance given to police by Witness A warranted greaterrecognition in fixing his sentence. The sentence of 12 years' imprisonment wasreduced to eight years' imprisonment.26[74] Witness A gave evidence in Mr Tamihere's trial in November 1990. Whengiving that evidence, Witness A produced some hand-drawn maps he said had beenprepared by Mr Tamihere to demonstrate exactly where he had committed the murders.Witness A further stated that Mr Tamihere had told him:(a) He met the Swedish tourists on a bush track in the Coromandel and thatthey agreed to let him and his "mates" act as their guides.(b) He and three other males attacked and raped both victims.(c) He killed the victims by breaking their necks.26 R v Accused (CA349/89) [1990] 2 NZLR 316 (CA).(d) He buried the bodies near the edge of a bluff because he considered pighunters to be the most likely to find a human body and pig hunters donot as a rule, go near the edge of bluffs.Key elements of the evidence given by Witness A[75] In his evidence-in-chief, Witness A said that he received no inducements orpromises of support from the police if he gave evidence against Mr Waa.[76] Witness A explained how he had met Mr Waa in Mount Eden Prison and howthey discussed Mr Waa's case and that Mr Waa was concerned about Mr Cullen'sstatements to his partner and brother in which Mr Cullen said it was Mr Waa who hadshot Mr Bell. Witness A said he agreed with Mr Waa it was that evidence that "wasdangerous" for Mr Waa.[77] Witness A also relayed the details of how Mr Waa said he had blown away MrBell and that Mr Waa claimed he and Mr Cullen went to the motel in order to abductMr Bell in order to find where some krugerands were being kept.[78] Witness A told the jury that Mr Waa said he was going to apply for severanceand dismiss his then lawyer, Mr Nicholson QC, at short notice and engage eitherMr Bungay or Mr Williams as his defence counsel. He also said Mr Cullen wasplanning on pleading guilty without warning his lawyer of his intention to do so.[79] When cross-examined by Mr Bungay, Witness A denied having been a policeinformant in New South Wales. He acknowledged however, that when he wassentenced by Thorp J for the heroin offending, he received a lesser sentence than hemight otherwise have received because of the assistance he had given to the police.Witness A accepted that he was pursuing an appeal against his 12-year sentence ofimprisonment but said he was only doing so "on legal advice". He also accepted thathis appeal had been adjourned until after he had given evidence for the Crown againstMr Waa.[80] Witness A acknowledged in cross-examination that he had given informationto the police about what Mr Tamihere had told him concerning the murders of theSwedish tourists, although he said he did not know at that stage if he would be givingevidence in that trial.[81] Mr Bungay suggested to Witness A that the fact he was giving evidence inmajor trials was a matter he wanted the Court of Appeal to take into account whendetermining his sentence appeal. Witness A's answer was "I don't think so. I don'tthink they give any weight to that." When asked if Witness A had any other cases "inthe pipeline" the response was "not at the moment".[82] As we have previously noted, Mr Bungay also asked Witness A if Mr Waa hadconfessed to the Red Fox Tavern murder. Witness A responded in the affirmative. Wereturn to this topic at [109]–[113].Directions given by the trial Judge[83] When directing the jury on how they should approach Witness A's evidence,Thorp J said:It may already be obvious to you, but the fact is that [Witness A], as you weretold, was sentenced last October to 12 years imprisonment for his involvementin the importation of heroin, and that he has, as he is fully entitled to do, givennotice of appeal against that sentence: and it is reasonably clear that he willseek to persuade the Court of Appeal that the totality of the assistance he hasprovided deserves greater credit than has so far been given. It would havesimplified the assessment of his evidence if his appeal had been determinedbefore he gave evidence here, as it would have meant that he had nothing togain from assisting the police further, but that proved impracticable, whichmeans that [Witness A] is still in the position where there is an incentive forhim to give evidence which favours the prosecution. Now that is a matter youneed to know, but I add it is just one of the matters which your commonsensewill inform you you need to take into account in deciding what you make ofhis evidence, what weight you are prepared to give to any part of it. In theend it must be for you in respect of [Witness A], as with any other witness, todecide what his evidence is worth.Challenges to the admissibility of Witness A's evidence[84] The challenges to the admissibility of Witness A's evidence focused upon:(a) his incentives to give false evidence;(b) the absence of corroboration of his evidence; and(c) the credibility of Witness A.Incentives[85] Mrs Vear submitted that Witness A's evidence in relation to incentives waseither false or deliberately designed to mislead the jury as to his motivation. This, shesaid, seriously impacted upon his credibility and diminished the value of his evidence.[86] Mrs Vear criticised the following aspects of Witness A's evidence:(a) While he had appealed the length of his sentence, he was doing so inaccordance with "legal advice".(b) He had not been confirmed as a witness in the "Swedes' trial".(c) He did not think the Court of Appeal would take into account theevidence he was giving in major trials.(d) He was not seeking greater credit for giving evidence.(e) He had "nothing else in the pipeline".[87] Mrs Vear submitted that the statements we have summarised at [86] were falseand that the issues associated with Witness A's evidence were exacerbated by the facthe lied about his motivation and the Crown failed to disclose the incentives that werebeing offered to Witness A at the time he gave his evidence.[88] Mrs Vear also said that it became apparent after Witness A gave his evidencethat he sought to benefit from a reward of $20,000 that had been offered by the policefor information leading to the arrest and conviction of the persons responsible for themurder of Mr Bell. The only evidence to support this claim was a letter dated19 February 1992 from Witness A to a senior police officer, complaining about the factthat he would not be receiving part of the reward. There is no evidence about whenWitness A applied for the reward, or if he anticipated being eligible for the rewardwhen he gave his evidence.Absence of corroboration[89] Mrs Vear submitted that it was telling that the police were unable to find anyinformation that supported Witness A's evidence that the whole incident was motivatedby a plan to locate krugerands.[90] The Crown submitted that Witness A's evidence was corroborated when itbecame apparent Mr Waa had sought severance, Mr Nicholson had been replaced byMr Bungay as Mr Waa's counsel and when, shortly before the trial, Mr Cullen wroteto the Court without the knowledge of his counsel trying to plead guilty to the charges.Credibility of Witness A[91] Mrs Vear said that the credibility of Witness A was substantially underminedby the fact that evidence he gave against Mr Tamihere proved to be factually incorrect.Mr Hoglin's remains were discovered in October 1991, some 10 months afterMr Tamihere's trial. The discovery of Mr Hoglin's body revealed that:(a) His body was located about 73 kilometres from where, according toWitness A's evidence, the murders had taken place.(b) The body was found by pig hunters near the foot of a bluff, rather thannear the edge of one.(c) There was no evidence to substantiate the sexual assaults that weredescribed.(d) Mr Hoglin's neck was not broken. Pathologists were of the opinion hehad died as a result of stab wounds and a possible attempt atdecapitation.[92] Mrs Vear said there was further evidence to undermine Witness A's credibility,namely:(a) After he had given his evidence against Mr Waa, Witness A wastransferred to Invercargill Prison. He later provided information topolice about alleged misconduct of prison officers.(b) While incarcerated in Whanganui Prison following his sentence appeal,Witness A was found to have participated in the making of "false andmalicious allegations" against prison officers.(c) In 2006 Witness A left New Zealand for Australia using a passportobtained with another person's identity.[93] In summary, Mrs Vear submitted that:(a) Witness A was clearly incentivised to give false information whentestifying against Mr Waa.(b) There was an absence of corroboration of his evidence.(c) The evidence Witness A had provided as an informant in respect of theprosecution of Mr Tamihere was factually incorrect.(d) The additional matters we have referred to at [92] further underminedWitness A's credibility.Analysis[94] Mr Waa was represented at his trial by very experienced counsel who, aftercross-examining Mr Waa during the pre-trial voir dire, determined that there was nobasis upon which he could challenge the admissibility of Witness A's evidence.Notwithstanding that decision, Mrs Vear argues that the evidence of Witness A wasinadmissible.[95] In W v R,27 the Supreme Court identified the key considerations concerning theadmissibility of prison informants' evidence. The Supreme Court said:27 W v R [2020] NZSC 93 citing R v Bain [2009] NZSC 16, [2010] 1 NZLR 1.(a) A key consideration is whether the connection between the evidenceand the proof is "worth the price to be paid by admitting it" in evidence.(b) Reliability will be a consideration in the balancing test between theprobative value and unfair prejudice.(c) Relevant considerations for this type of evidence might include:(i) the credibility of the witness in an informant context;(ii) any incentives or expectations of preference at play (includingthe inability of the prosecution to confirm whether incentiveshave been offered or given); and(iii) the likely weight to be attached to the evidence.(d) However, the role of the jury as factfinder needs to be respected. Thecourt is only acting as a gatekeeper, and unfair prejudice may be dealtwith by way of jury directions where appropriate rather than exclusion.(e) If the informant's evidence as it emerges at trial is such that it could notreasonably be accepted, a trial Judge will need to direct the jury todisregard it.[96] These principles substantially reflected the test for excluding unreliableevidence that could be found in the Evidence Act 1908. In applying those principleswe shall analyse Witness A's evidence under the following headings:(a) incentives;(b) corroboration; and(c) credibility.[97] We shall then examine the Judge's summing-up concerning Witness A.Incentives[98] Mrs Vear is correct when she points out that there is now more evidence tosupport the contention that Witness A may have given his evidence believing that itwould assist his appeal against sentence. That point was, however, plainly obvious atMr Waa's trial. Mr Bungay's cross-examination of Witness A shows how he exposedWitness A's track record as a prison informant and the likelihood he expected to getcredit for the assistance he had given the authorities. Although we no longer have theclosing addresses of counsel, it is inconceivable that Mr Bungay would not haveemphasised these points during his address to the jury. This conclusion is reinforcedby the fact the trial Judge pointed out to the jury that it was obvious that Witness Awas hoping to get greater credit for the assistance that he had given to the authoritieswhen his sentence appeal was heard by the Court of Appeal.[99] In our assessment, the contention that Witness A was incentivised to give hisevidence was a matter that was plainly before the jury, albeit, possibly without thelevel of detail Mrs Vear says could have been established. Nevertheless, we considerit is not reasonably arguable that Mr Waa's conviction should be quashed becausefurther evidence may now be available about the incentives he had to give hisevidence.Corroboration[100] The absence of corroboration of the details of the "krugerand" explanation forMr Waa and Mr Cullen going to the motel is also a matter that Mr Bungay wouldinevitably have emphasised to the jury. The transcript shows that Doc Cullen, whowas supposedly connected to the krugerand story was cross-examined by Mr Bungayand said he had no idea what a krugerand was or from what country they came. Thatwould inevitably have provided fertile territory for Mr Bungay to have submitted tothe jury that the krugerand story was false.[101] We do not know what, if any, weight the Crown placed upon the fact thatWitness A's evidence was, to some degree, corroborated by the procedural informationthat he provided in his testimony concerning Mr Waa seeking severance, the changeof his lawyer and Mr Cullen's efforts to plead guilty. They are, frankly, minor mattersthat may well not have been relied upon at all by counsel for the Crown.[102] In any event, the degree to which there was no corroboration of Witness A'sevidence does not provide a reasonable basis to argue that Mr A's conviction shouldnow be quashed.Credibility[103] Whilst it is correct that Witness A's evidence about what Mr Tamihere told himproved to be wrong in many material respects, there are two reasons why thesuggestion that this new evidence undermines the credibility of Witness A isoverstated:(a) In his appeal against conviction, it is recorded Mr Tamihere made itvery clear that he "fed false stories of different kinds to five or sixfellow prisoners so that he could identify those whom he believed mighttry to wrongly inform on him".28(b) Witness A was not endeavouring to assert that what Mr Tamihere toldhim was the truth. He was merely conveying to the jury what he saidMr Tamihere told him.[104] In relation to the further evidence which Mrs Vear said undermined WitnessA's credibility:(a) Ms Brook has correctly pointed out that the findings made againstWitness A were of a relatively insignificant nature.(b) The fact Witness A may have used a false passport when leaving NewZealand in 2006 is not evidence that seriously undermines hiscredibility.28 Tamihere v R CA428/90, 21 May 1992 at 11.[105] The materials Mrs Vear relies upon do not lay an adequate foundation toreasonably argue that Mr Waa's conviction should be quashed because of concernsabout the reliability of Witness A.The Judge's directions[106] Mrs Vear criticised the trial Judge's summing up in relation to the way the juryshould assess Witness A's evidence. She relied on a passage from the opinion of thePrivy Council in Benedetto v R, in which it was said:29In the case of a cell confession it is that the evidence of a prison informer isinherently unreliable, in view of the personal advantage which such witnessesthink they may obtain by providing information to the authorities. Witnesseswho fall into this category tend to have no interest whatsoever in the propercourse of justice. They are men who, as Simon Brown LJ put in R v Bailey tend not to have shrunk from trickery and a good deal worse. And they willalmost always have strong reasons of self-interest for seeking to ingratiatethemselves with those who may be in a position to reward them forvolunteering confession evidence. The prisoner against whom that evidenceis given is always at a disadvantage. He is afforded none of the usualprotections against the inaccurate recording or invention of words used by himwhen interviewed by the police. And it may be difficult for him to obtain allthe information that is needed to expose fully the informer's bad character.[107] Benedetto was decided 13 years after Mr Waa's trial. While today, a Judgemay give stronger cautions to a jury before they accept the evidence of prisoninformants, Thorp J cannot be criticised for failing to anticipate what would be said inBenedetto.[108] More fundamentally however, Thorp J instructed the jury to bear in mind theincentive that Witness A may have been expecting when giving his evidence. Thatinstruction was entirely consistent with the law that applied in 1990.Rex Fox Tavern murder[109] For obvious reasons the Crown did not adduce from Witness A evidence thathe had recorded in his notes to the effect that Mr Waa had claimed responsibility forthe Red Fox Tavern robbery and murder. Mr Bungay, however, made a tacticaldecision to ask Witness A the following question:29 Benedetto v R [2003] UKPC 27, [2003] 1 WLR 1545 at [32].Q I suppose he also said to you he was responsible for the Red Foxmurder as well?A He did say that, yes.[110] We do not accept that there was any irregularity in the way in which Mr Bungaycross-examined Witness A on this topic. It is plain that Mr Bungay's question waslaced with sarcasm and that he intended to lay a platform for submitting to the jurythat Witness A was willing to say that Mr Waa was responsible for crimes for whichhe had never been charged.[111] We consider it inconceivable that Mr Bungay would have asked the questionthat he asked of Witness A if there was the slightest risk that Mr Waa was suspected ofhaving committed the Red Fox Tavern murder. In any event, as we have noted at [36],there is no evidence to suggest that Mr Waa was ever at risk of being prosecuted forthe Red Fox Tavern murder.[112] Thorp J did not consider it necessary to refer to the statement made by WitnessA about the Red Fox Tavern murder when summing up to the jury. He no doubtthought it was a topic that was best left alone least he undermine any tactical advantageMr Bungay's cross-examination may have achieved.[113] We cannot see any basis upon which the Judge erred by not giving the jury adirection about the Red Fox Tavern murder evidence, let alone a possible error oromission that would engage s 385(1) of the Crimes Act.Conclusions[114] None of the grounds advanced in support of the proposed appeal are reasonablyarguable. On the contrary, the directions given to the jury in Mr Waa's trial and therulings made by the trial Judge were entirely orthodox and totally consistent with thelaw that applied in 1990.Result[115] The application for leave to appeal is dismissed.Solicitors:Public Defence Service, Auckland for ApplicantCrown Law Office, Wellington for Respondent