Brown v The Queen

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA27/2019
[2021] NZCA 120

BETWEEN	CHRISTOPHER JAMES BROWN Appellant
AND	THE QUEEN Respondent

Hearing:	15 February 2021
Court:	Gilbert, Mallon and Edwards JJ
Counsel:	F E Guy Kidd QC and L C Preston for Appellant C A Brook and A D H Colley for Respondent
Judgment:	20 April 2021 at 9.30 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence on appeal is granted.
BThe appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

Christopher Brown, then aged 19, and six other young people were charged with the murder of Jack McAllister after he was stabbed 14 times with a hunting knife at ILT Stadium Southland (the Stadium) in Invercargill shortly after 11 pm on 7 June 2017. Mr McAllister, who was also 19, was known to all the defendants and he and Mr Brown were cousins.

Brayden Whiting‑Roff (aged 20) inflicted the fatal stab wounds. He pleaded guilty to murder shortly before the trial and was subsequently sentenced to life imprisonment and ordered to serve a minimum period of imprisonment of 12 years and six months.[1]
[1]R v Whiting-Roff [2018] NZHC 3239 [Sentencing judgment].
Georgia Dickey (aged 16) helped plan the attack and participated in it by punching Mr McAllister and restraining him while he was being stabbed by Mr Whiting-Roff. Ms Dickey pleaded guilty as a party to the murder four months prior to the trial and agreed to give evidence for the Crown. She was sentenced on 13 June 2018 to life imprisonment and ordered to serve a minimum period of imprisonment of 10 years.[2] She filed an appeal against her sentence on 12 July 2018 (three weeks before trial commenced for Mr Brown and the other defendants) contending that the sentence was manifestly excessive given her youth, prospects for rehabilitation and assistance by agreeing to give evidence for the Crown at the forthcoming trial.
[2]R v Dickey [2018] NZHC 1403.
The Crown alleged that Mr Brown was a party to the murder on two alternative bases. First, it was alleged that he was one of two or more people who agreed to prosecute an unlawful purpose (a serious assault on Mr McAllister with intent to cause him serious injury) and to assist each other in doing this, knowing Mr McAllister’s death was a probable consequence in the sense that there was a real or substantial risk it could happen.[3] Secondly, the Crown alleged that Mr Brown encouraged or assisted Mr Whiting-Roff to murder Mr McAllister.[4]
[3]Crimes Act 1961, s 66(2).
[4]Section 66(1)(b) or (c).
There was little dispute about the basic facts of what happened on the night of the attack or in the lead-up to it. The primary issues concerned the nature of the attack Mr Brown envisaged (a single punch as he contended in his police interview or a far more serious knife attack as occurred) and the extent of his participation.
The five-week trial in the High Court at Invercargill commenced on 2 August 2018 and was presided over by Dunningham J. Evidence was adduced from 37 witnesses including Ms Dickey who was the second witness called. The jury was also provided with evidence of Facebook, text and other communications between some of the defendants, both before and after the attack. CCTV footage was also played, including footage which captured part of the attack at the Stadium.
The jury found Mr Brown guilty as a party to the murder. Another defendant, Laura Scheepers (aged 18 at the time), was found guilty as a party to manslaughter. The remaining three defendants, Crystal Murray, Natasha Ruffell and David Wilson, were found not guilty.
Mr Brown was subsequently sentenced to life imprisonment and ordered to serve a minimum period of imprisonment of 10 years.[5]
[5]Sentencing judgment, above n 1, at [75].
Mr Brown has appealed against his conviction and sentence. However, this judgment deals only with his appeal against conviction. His appeal against sentence is to be heard separately by the Permanent Court in the event the conviction appeal is dismissed. This is to enable the Court to consider the appropriateness of imposing life sentences on young persons.

Grounds of appeal

Mr Brown argues that a miscarriage of justice occurred at his trial for the following three reasons:
(a)Illegitimate and prejudicial propensity evidence was given one week into the trial by Alisha Adams (his older cousin) about Mr Brown’s tendency to “rage” and, when intoxicated, to be “very aggro”.
(b)The Judge declined to warn the jury that Ms Dickey’s evidence may be unreliable. Mr Brown contends such a warning was required under s 122 of the Evidence Act 2006. He argues that Ms Dickey had a motive to give false evidence prejudicial to him because she hoped to get a reduction to her sentence on appeal in recognition of her assistance in giving evidence for the Crown.
(c)Ms Dickey recanted the evidence she gave at trial by stating in a letter she sent to Mr Brown from prison that she told lies at the trial. She also told Mr Brown in this letter that she was going to abandon her sentence appeal (which she subsequently did).
We commence by summarising the Crown and defence cases so that the appeal grounds can be considered in context and a proper assessment made as to whether justice has miscarried.

The Crown case

In the months preceding the attack, animosity towards Mr McAllister was building amongst the defendants and their circle of friends because of his behaviour, including alleged sexual misconduct. The Crown led evidence of three specific incidents which contributed to this animosity and the growing calls for retribution from within the group.
The first incident occurred on 8 March 2017, three months before the attack. Mr Brown, Ms Dickey, Mr McAllister and two others were out drinking in a truck at Sandy Point, Invercargill. Ms Dickey said that Mr McAllister sexually assaulted her in the back of the truck that night while she was intoxicated.
Around this time, Mr Brown was seen by the group as someone who might sort Mr McAllister out. Mr Brown responded to a suggestion he wanted to kill him in an exchange of Facebook messages with Mr McAllister’s stepmother on 31 March 2017:
Stepmother: “hey wht the fk is goin ae with [Mr McAllister] now well”.
Mr Brown: “Aye that chick who is with him cum up to me and started to say I want to kill him like wtf I’m over it nw me and him need to sort it out once and for all OK u guys can deal with me but I’m just over it nw”.
The following day, Mr Brown exchanged Facebook messages with a friend, Aleaka Newcombe, also talking about suggestions he was going to kill Mr McAllister:
Mr Brown: “But I’ve been pulled up 3xs tonight and everyone thinks that I’m going to kill [Mr McAllister]”.
Ms Newcombe: “U should lol i wanna drive”.
Mr Brown: “I knw but cops on there way to c me as thy just [rang] my phone lol”.
The second incident occurred about one month before the attack. According to the evidence of Braydon McKay (a friend of Mr McAllister), Mr McAllister tried to force himself on Ms Scheepers. He only stopped when another person who was living at the address arrived home. Ms Scheepers told Mr Brown about this incident.
The third incident took place a short time later, on 4 June 2017, when Mr Whiting-Roff pulled out a knife and threatened to stab Mr McAllister. This was in response to derogatory comments Mr McAllister was said to have been making about Mr Whiting-Roff’s recently deceased brother. Mr Brown was present at the time and witnessed this incident. The police were called to the address and Mr Whiting-Roff was later convicted of this offending.
Animosity towards Mr McAllister continued to build. Two weeks prior to the fatal attack, Mr Whiting-Roff was overheard at a party in a garage telling Mr Brown and others that he “wanted to finish [Mr McAllister] off”.
The idea of a group attack on Mr McAllister appears to have started to gain momentum around this time. James Chapman, one of Mr Brown’s associates, said he was walking to the library one day (he could not recall the date) when Mr Brown drove past with Ms Dickey and another person in the car. Mr Brown pulled over and asked him if he would “join in to go to beat [Mr McAllister]” with “a few of his mates”. When Mr Chapman refused, Mr Brown told him to “fuck off”.
The immediate catalyst for the events that unfolded on the night of 7 June 2017 can be traced to a series of telephone conversations that day, two involving Ms Dickey and two involving Mr Brown.
Ms Dickey said she received a telephone call from Mr McAllister on the day of the attack accusing her of being a liar (in respect of her allegations concerning the Sandy Point incident) and claiming that she was responsible for putting her former partner in jail. She said she received a similar call from Mr McAllister’s stepmother who said she was going to report her to the police for breaching her bail conditions. Ms Dickey said this made her angry and upset. Following these telephone conversations, Ms Dickey sent a message on Facebook messenger to Mr Whiting-Roff at 7.47 pm which read “[s]o just got off the phone to [the stepmother] and she’s getting us done because we said [Mr McAllister’s] been touching her kids lol”. She said she ran into Mr Brown and her cousin, Devin Sparrow, after receiving these calls.
Mr Brown told the police that Mr McAllister’s stepsister phoned him that evening to tell him that Mr McAllister had “touched” her younger brother “again”. Mr Brown rang Mr McAllister’s stepmother at 8.20 pm to find out if this was true but she denied it.
As will be seen from the more detailed timeline set out below, plans for a group attack on Mr McAllister that night began to take shape. The plan was for Ms Scheepers to lure Mr McAllister to a secluded location at the Stadium on the pretext of having sex with her. Once Mr McAllister was isolated, the Stadium exits would be blocked by members of the group to prevent him from escaping the intended attack. The plan was firmed up during a meeting at Subway, Wachner Place and later at a house in Ettrick Street, Invercargill where Ms Murray, Mr Brown and Ms Ruffell were living at the time. The Crown case was that Mr Brown was one of the principal instigators of the attack.
We pick up the timeline from the time of Ms Dickey’s message at 7.47 pm on the night of the murder.

7.47 pm	Ms Dickey sends a Facebook message to Mr Whiting-Roff — “So just got off the phone to [Mr McAllister’s stepmother] and she’s getting us done because we said Jack’s been touching her kids lol”.
7.50 pm	Mr Whiting-Roff replies — “[Mr McAllister’s stepsister] told me and farmer”. [Mr Brown was commonly referred to by his associates as “Farmer” or “Farmer Brown”].
7.59 pm	Ms Scheepers sends a Facebook message to Mr Brown — “Upto”.
8.08 pm	Ms Scheepers and another associate, Bethaney Sharp, arrive at Subway.
8.10 pm	Ms Dickey sends a Facebook message to Mr Whiting-Roff — “Farmer is looking for Jack [McAllister] get some people he’s dead”.
8.12 pm	Ms Scheepers sends a text message to Mr McAllister — “Heyyyy, keen to fuck” (they later arranged to meet at the Stadium around 11 pm).
8.15 pm	Mr Brown telephones Ms Scheepers.
8.20 pm	Mr Brown telephones Mr McAllister’s stepmother.
8.21 pm	Ms Scheepers sends a Facebook message to Mr Brown — “Jack will come if I tell him to but I don’t wanna be evolved if you’re planning on him not coming out of the hospital … Involved * … And he’s [with] Braydon [McKay]”.
8.23 pm	Ms Dickey arrives at Subway.
8.27 pm	Ms Scheepers sends a Facebook message while she is at Subway to Mr Brown — “How long will everyone be?”.
8.29 pm	Mr Brown posts on Facebook — “Were the fuck r u jack McAllister?”. Mr Brown said in his police interview that he posted this message because he wanted to find out from Mr McAllister if what he had been told about Mr McAllister inappropriately touching the child was true. Mr Brown added that he “had a gut feeling that something was gonna happen to [Mr McAllister that night]”.
8.29 pm	Comments between Ms Scheepers and Mr Brown on Mr Brown’s post Ms Scheepers — “[private message] me bros … I know”. Mr Brown — “Fuckn tell me nw”. Ms Scheepers — “What’d he do?”. Mr Brown — “Tell me”.
8.29 pm	Mr Whiting-Roff posts on Facebook — “I don’t give a fuck no more who has been traumatised by Jack McAllister comment down below and tell me what he’s done I already know a few things but I’ve sorted him out once I’m gona fuck him up this time Idgaf [I don’t give a fuck] what anyone says he is worth going to jail for pigs arnt doing anything so I will catch u up jack”.
8.35 pm	Mr Brown comments on Mr Whiting-Roff’s post — “Hard my g”.
Other comments on Mr Whiting-Roff’s post included — “I want to find him to, bro”. “Keen to smash him as well lol he’s a fucking peasant”. “He’s a shit-stirrer, Farmer Brown, I’d had trouble with him and my … mates Because his sister made a heap of shit, little kids, aye, Like grow the fuck up”.
Mr Whiting-Roff makes several comments on his own post — “Everyone read my post”. “Farmer Brown [private message] me”. “Jack is a goner”.

We interpolate here to note that a further associate of Mr Brown, Phillip O’Brien, gave evidence that he received a text from Ms Murray around this time asking him to come over to Ettrick Street because Mr Brown “was having a meltdown”. Mr O’Brien said when he arrived, Mr Brown appeared “[r]eal angry and frustrated” and was saying “he wanted to stab [Mr McAllister]”. Mr O’Brien said Mr Brown was “still amping up” while he was talking on the phone and he saw him throw the phone during this call (which was another call from Mr McAllister’s stepmother). Mr O’Brien said that after throwing the phone, Mr Brown left the room and reappeared with a “hunting style knife” in his hand. Mr O’Brien said he took the knife off him and put it in a drawer.
Returning to the timeline:

8.36 pm	Messrs O’Brien and Brown leave Ettrick Street.
8.45 pm	Ms Scheepers misses two calls from Mr Brown.
8.48 pm	Messrs O’Brien and Brown arrive outside Subway. Ms Dickey goes outside to talk to them. According to Mr O’Brien, Mr Brown talked about “getting [Mr McAllister]” and “giving him a hiding”. Ms Dickey said Mr Brown talked about a “plan for us to get [Mr McAllister]”, “bashing him and getting carloads” and “[Ms Scheepers] was setting it up”. Ms Dickey said she also “wanted to give [Mr McAllister] the bash”.
On Ms Sharp’s account, she met up with Mr Brown and the others outside Subway before they left. She said Mr Brown was “angry”, “very aggressive” and was talking about wanting to “beat him up”, referring to Mr McAllister.
8.54 pm	Ms Scheepers and Ms Sharp leave Subway.
8.54 pm	Messrs Brown, O’Brien and Ms Dickey also leave Subway and walk back to Ettrick Street.
9.21 pm	Ms Dickey enters the house at Ettrick Street. Messrs Brown and O’Brien continue walking to an associate’s nearby address, in Conon Street. According to Mr O’Brien, Mr Brown “kept saying he wanted to go and stab [Mr McAllister]”.
Mr O’Brien returns home.
10.03 pm	Mr Brown returns to Ettrick Street where he and the defendants (except Ms Scheepers) assemble in Ms Murray’s room.

Ms Dickey said Messrs Brown and Whiting-Roff were “amped up” at Ettrick Street, as was she. She recalled Mr Whiting-Roff repeatedly saying Mr McAllister was a “kiddy-fucker” and “a rapist”. Callum Swinburne, another witness who was present, said Mr Whiting-Roff was “going on about stabbing [Mr McAllister]”. He was sharpening a hunting knife (the murder weapon) on a flint, making sparks. According to Ms Dickey, Mr Whiting-Roff got up at one point and was “shadow boxing with the knife”.
Mr Brown told the police that Mr Whiting-Roff said to the group “I’ve been given an all clear to go stab him, kill him”, he was “gonna take him out”, and he had been “given orders to kill him” (referring to Mr McAllister). When asked by the police what was going through his mind when Mr Whiting-Roff made these comments, Mr Brown replied “[Mr McAllister] is gonna die or [he’s] gonna be seriously injured”. The Crown placed significant emphasis on this statement.
According to Ms Dickey, Mr Brown put on a balaclava around this time and brandished another hunting knife. She described him as “scrunched over acting staunch”. She said Ms Murray pulled a “small … tomato cutting knife” out of her bedside drawer. It was common ground that all three of these knives were taken to the Stadium although Mr Brown and Ms Murray left their knives in the car.
Messrs Whiting-Roff, Brown, Wilson and Sparrow, together with Ms Dickey and Ms Murray, drove to the Stadium in Ms Ruffell’s car. The timing of their arrival was coordinated with Ms Scheepers who communicated on Facebook and by text message to Mr Brown’s phone.

10.28 – 10.30 pm	Facebook messages between Ms Scheepers and Mr Brown — Ms Scheepers — “I’m meeting up with [Mr McAllister] soon ish”. Mr Brown — “Where”. Ms Scheepers — “Probably stadium”. Mr Brown — “Thts a big walk for me”. Ms Scheepers — “Algud”. “I’ll handle them myself”. Mr Brown — “Who’s thm??”
10.34 pm	Mr Brown calls Ms Scheepers.
10.44 pm	As arranged with Ms Scheepers, Messrs McAllister and McKay arrive at the Stadium in Mr McKay’s white Mazda.
10.46 pm	Text messages between Ms Scheepers and Mr Brown’s phone — Ms Scheepers — “He’s at the stadium now, I’m 5 minutes away, I’m meeting him on the [bleachers]”. Mr Brown — “Right we on way keep him there”. Ms Scheepers — “Wait 10 minutes”. “If you get there first, he’ll leave”.
10.48 pm	Mr McAllister’s stepmother makes two brief calls to Mr Brown and sends a Facebook message to him — “wipe that post bout [Mr McAllister] i am on my way to copz now”.
10.53 pm	Messrs Whiting-Roff, Brown, Wilson, Sparrow, Ms Dickey and Ms Murray leave Ettrick Street in Ms Ruffell’s car.
10.54 pm	Texts between Ms Scheepers and Mr Brown’s phone — Ms Scheepers — “There car is here, give me 5 minutes with him to make him happy”. Ms Scheepers then sends a further text with the registration number of Mr McKay’s car. Mr Brown — “Where use”. Ms Scheepers — “Hold up. I gotta get him outta the car first or he’ll bolt”. “Dont come in yet”.
10.57 pm	Further text messages between Ms Scheepers and Mr Brown’s phone — Mr Brown — “OK we just past [Burger King] Wat car is it”. Ms Scheepers — “Hold up 5 minutes, he’s nervous”.
10.58 pm	CCTV footage shows Mr McAllister getting out of the car. Ms Scheepers meets him and they walk towards the bleachers.
10.59 – 11.02 pm	Further text messages between Ms Scheepers and Mr Brown’s phone — Mr Brown — “Where use and what car”. Ms Scheepers — “It’s a wee white mazda”. Ms Scheepers — “We on the [bleachers] that look out over the field track”.

Ms Dickey said that after they arrived outside the Stadium, she and Messrs Whiting-Roff and Brown got out of the car and walked across the road to the Isabella Street entrance. Ms Dickey then split from the other two, crossed the road and walked beside the buildings and playground while Messrs Whiting-Roff and Brown walked along the treeline. Meanwhile, Messrs Wilson and Sparrow and Ms Murray waited in the car.
A few minutes later, Mr McKay, who had followed some distance behind Mr McAllister and Ms Sheepers and was sitting in a different part of the stand, saw two people running towards them from the Isabella Street entrance. CCTV footage captured Messrs Brown and Whiting-Roff walking through the centre of the car park and then running towards them at 11.03 pm. Mr McKay called out to alert Mr McAllister that people were coming. Messrs McAllister and McKay then ran back to Mr McKay’s car while Ms Scheepers remained near the stand.

When Messrs McAllister and McKay got back to the car, Messrs Whiting-Roff and Brown were already there. Mr McKay said Mr Brown prevented him from getting into the driver’s seat. He explained that Mr Brown was “holding the door back but he’s also holding me at the same time so I can’t get in the car”. This was not captured on CCTV because the camera was directed towards the passenger side of the car.
Ms Dickey arrived approximately 15 seconds later. She said she “went straight for [Mr McAllister]” and “laid into him, throwing punches”. Mr Whiting-Roff joined in the attack, which occurred on the passenger side of the car. Mr Brown was present at the time but there was no evidence he participated in this attack. CCTV footage shows Mr McAllister getting into the front passenger seat. Seven seconds later, Mr Brown can be seen holding the front passenger door open while Ms Dickey is leaning into the vehicle. Ms Dickey said she put Mr McAllister in a headlock and Mr Whiting-Roff “pulled out a knife and stabbed [him] in the stomach”. Mr Brown is seen to back away from the car approximately 13 seconds after he first holds the door open and 11 seconds after the stabbing commences. The sequence and timing of these events were confirmed by CCTV footage.
Ms Dickey said Mr McAllister then got out of the car, walked towards the track fence and leaned up against it before running onto the athletics track. Ms Dickey said she followed him and pulled him back to the track fence and “laid into him again”. She said Mr Whiting-Roff “appeared from behind [her] again and started stabbing him”. Ms Dickey said she “kept throwing punches and then [she] just stopped and walked away”. None of this was captured on CCTV.
Mr McKay said he could see Mr McAllister through the fence being stabbed in his left shoulder and lower back. He saw him being stabbed about five times “really aggressively” but “it could have been more”. While this was occurring, Mr McKay said he was being restrained by Mr Brown and “a girl holding my waist”.
Mr McAllister ran back towards the car with Mr Whiting-Roff in pursuit. Although not captured on CCTV, it was not disputed that Mr Brown tripped Mr McAllister at this point. Mr Brown’s explanation to the police was that he was protecting himself because he thought Mr McAllister was going to tackle him.
Ms Dickey said she saw Mr Brown arguing with Mr McKay. She described what happened next as follows:
Q. Then what happened?
A.Um, I can’t remember why I’d walked away but Jack had come back, back to the car, and Brayden Whiting-Roff was following him and I had seen Chris and Braydon McKay. Um, and I went to go focus back on Jack and I had seen Chris and Braydon McKay arguing, um, and then Braydon McKay had said something about getting in the car to Jack, um, he’d opened the [driver’s] door and Chris had pushed him and shut the door with one hand, and then my focus was completely back on Jack.
Q.Just pause for a minute there, please. So, I just want you to describe the interaction you have just spoken about with Chris Brown, so describe to the jury what you recall seeing him do please?
A.Um, I seen him and Braydon McKay arguing. I heard Braydon McKay say something about, “Jack get in the car.” I seen Braydon McKay open the door, I seen Chris shove him and then shut the door with one hand.
Q. Then what happened?
A.And then I was completely focussed back on Jack and went round to the passenger side of the car where Jack was trying to get into the car.
Mr McAllister managed to get in the front passenger seat of the car but Mr Whiting-Roff opened the back passenger door, reached in and continued to stab him. This can be seen on the CCTV footage at 11.08 pm. Ms Dickey said she “tried to pull [Mr McAllister] out of the car and then after that just … stopped” deciding “he’d had enough”. Ms Dickey said she told the others to “fuck off back to the car”. She said she pulled Mr Whiting-Roff off Mr McAllister and told Mr McKay to take him to the hospital. She said she also told Mr McKay “not to nark” or she would “come after him as well”.
Mr Whiting-Roff threw the knife away. This was retrieved and the group returned to their car. On the return journey, they dropped Mr Whiting-Roff off at his friend’s house. They made a second stop at Queens Park where Ms Dickey threw the knife into a bush before continuing to Ettrick Street, arriving there at 11.25 pm.
In the meantime, Mr McKay drove Mr McAllister to his stepmother’s address where he collapsed on the footpath. He was taken to hospital but died of his injuries a short time later.
Ms Dickey sent a text to Mr McAllister’s stepmother at 12.11 am — “How do you like me now seen what I did to [Mr McAllister] bitch your next when I get out”.
Ms Dickey went to the police station that evening and made a formal statement the following day. Mr Brown also made his formal statement to the police that day. He was charged and remanded in custody at his first court appearance.
Some three weeks later, on 29 June 2017, Mr Brown discussed his involvement in the attack with a friend (Micah Lindsay) during a recorded telephone discussion from prison which was played to the jury:
Ms Lindsay:     Like, how involved were you?
Mr Brown:      I’m right up in there.
Ms Lindsay:     Did you stab Jack as well?
Mr Brown:      No.
Ms Lindsay:     I didn’t think so.
Mr Brown:      No, I restrained Brayden/Braydon.

The Crown contended this latter reference was to Braydon McKay. The defence argued to the contrary that Mr Brown was referring to Brayden Whiting-Roff.

Defence case

Mr Brown elected not to give or call evidence at the trial. His defence can be summarised as follows. It was commonplace within this group of young people for nasty, violent and threatening statements to be made with little thought and without any serious intention of being acted upon. Mr Brown did not take Mr Whiting-Roff’s threats seriously, he did not believe Mr Whiting-Roff intended to kill Mr McAllister and nor did he think that Mr McAllister’s death would be a probable outcome. Unbeknown to Mr Brown and the rest of the group, Mr Whiting-Roff was “off on his own private mission”.
Ms Guy Kidd QC, for Mr Brown, explained:
A central plank of the defence case was that, notwithstanding posts of Mr Brown (and many others) on Facebook and texts, [Mr] Brown didn’t think that [Mr]Whiting-Roff’s talk and bravado with a knife before the fatal incident was any more than theatre. He never intended to help [Mr] Whiting-Roff murder [Mr] McAllister that night.
…
The jury also heard evidence that Mr Whiting-Roff was off on his own ‘mission’ from a point much earlier in the day. He had apparently stolen a knife from an associate and been hunting for [Mr McAllister]; unbeknown to [Mr Brown] and indeed the rest of the group.
Ms Guy Kidd emphasised the following exchange in Mr Brown’s police interview where he retreated from his earlier statement (quoted at [28] above) that he thought Mr McAllister was going to die or be seriously injured that night:
Q. Okay. So when you’ve gone there, and you’ve, and the whole incident started up, did you think that the death of [Mr] McAllister, your cousin, was gonna be a probable outcome of what was … going on?
A. I didn’t think [Mr Whiting-Roff] was serious about stabbing [Mr McAllister] and like taking [Mr McAllister] out, ‘til I seen [Mr Whiting-Roff], like … taking the knife and just … jabbing it in the back of [Mr McAllister]. Yeah, [Mr Whiting‑Roff] jabbing stabbing [Mr McAllister] in the back.
Ms Guy Kidd also referred the jury to the evidence of a number of witnesses from the wider group who were not involved in the fatal assault. Some of these witnesses were present at Ettrick Street on the night but none thought the violent talk would lead to murder.

Ground 1 — illegitimate and prejudicial propensity evidence

Early in the trial, the jury heard evidence from Mr Brown’s older cousin, Alisha Adams, who said she had known him all her life. It is common ground that two answers she gave in evidence-in-chief were inadmissible and unfairly prejudicial comments about Mr Brown’s propensity to rage and to be “very aggro” when intoxicated. The question is whether there is any risk of a miscarriage of justice having occurred on this account, particularly given the Judge’s prompt direction to the jury to completely disregard these comments.[6]
[6]Criminal Procedure Act 2011, s 232(4)(a).
Ms Adams said she was on Facebook on 7 June 2017 and saw Mr Brown’s post — “Were the fuck r u, jack McAllister” — and the responses including — “Keen to smash him as well … he’s a fucking peasant” — and the one from Mr Whiting‑Roff — “Jack is a goner”. Ms Adams said that when she saw these comments on Mr Brown’s post, she posted a warning — “No cunt better touch [Mr McAllister]”. She said she also rang Mr McAllister and told him to go somewhere safe. She also rang Mr McAllister’s stepmother to pass on her concerns about Mr Brown’s Facebook posts.
The first objectionable comment came in response to a question from the Crown solicitor asking why Ms Adams posted this comment. Ms Adams responded:
A. For protection because I know what Christopher Brown is like and when he rages.
Even based solely on a reading of the transcript, we are satisfied it would have been obvious to the jury that this answer was both unexpected and problematic.   The Crown solicitor immediately accepted “fault” and directed Ms Adams to avoid giving evidence about “what [she] thought”. She then moved to a different topic as soon as Ms Adams commenced her answer to the next question with the word “because”. Counsel explained the interruption by saying she could not “lead evidence that’s unfair” and “we’ll just move on”. We set out the relevant questions and answers below:
Q.So what we did, we’ll let’s focus in because that’s my fault, rather than what you thought, the tenor — I’m just trying to, we’ve had this other thing about it was we’ve heard evidence right, that in certain sections of the community people call each other “cunts” and “I’m going to smash you” and “I’m going to kill you” and all that sort of thing, okay, now you’ve told us that your reaction to this posting was to get a hold of [Mr McAllister], okay?
A.       That’s correct.
Q.       What — what was — what about the tone of the messages, do you         know what I mean, led you to be concerned about [Mr McAllister’s]     welfare?
A.       Because Farmer Brown —
Q.I won’t do that, sorry, I’ve got to try to ask but I can’t lead evidence that’s unfair, so we’ll just move on. …
About 10 minutes later, a similar issue arose when Ms Adams was asked about an earlier occasion when she had visited Mr McAllister’s biological father at his house in Invercargill. The stepmother, Mr Brown and Mr McAllister were also present, and they were all having a few drinks. Ms Adams was asked a series of questions about the conversation:
Q.So is there any conversation that took place that stands out in your mind?
A.Not really.
Q.Well, what sort of discussion was going on that night?
A.Just laughing and other than when [Mr Brown] gets too happy‑clappy and decides that he’s going to take [Mr McAllister] out.
Q.Too happy-clappy?
A.Yeah, too drunk.
Q.Too drunk, okay.
A.Too drunk and off his face.
Q.What I want to do please is I just want to focus on that. What led up to — what did [Mr Brown] say and what did [he] do?
A.When [Mr Brown] gets legless and that, he gets very aggro.
Q.Just pause for a minute. I was anticipating the – put it this way. Have you been —
(Emphasis added.)
At this point, the Crown solicitor stopped and asked to address the Judge in the absence of the jury. The jury accordingly retired at 3.18 pm. Following a discussion with counsel in chambers, the Judge addressed the jury immediately after the Court resumed at 3.47 pm as follows:[7]
Now, members of the jury, before we have that witness back it would have been obvious to you from the exchanges that we had before, that some responses were given which gave some discomfort to the lawyers. That is because we had a couple which strayed into areas of evidence which are inadmissible. So there is a very good reason in law why we only allow these sorts of witnesses to give evidence on what they saw and heard and said and did and the evidence should not stray into opinions (people’s opinions). I think you heard that we strayed into opinions about Chris Brown, well that is irrelevant. What Miss Adams thinks is irrelevant. All she is here to give evidence on is what she saw and heard and said and did, and so you are to ignore her comments entirely. I have ruled them inadmissible. They are irrelevant. We are going to hopefully keep the questions focussed so that she gives the kind of answers that are admissible in this hearing.
[7]R v Wilson HC Invercargill CRI-2018-425-10, 9 August 2018 (Direction of Dunningham J).
Although counsel made no criticism of this direction at the time, Ms Preston, who argued this part of the appeal, submits that, with the benefit of hindsight, it was too general and likely to have been lost on the jury. She points out that a member of the press who was present in court at the time published the first of the offending comments (the “rage” comment) the following day, and therefore cannot have understood the Judge’s ruling that both of Ms Adams’ comments were inadmissible. In an article published on page three of the Southland Times newspaper and in Stuff online, Ms Adams was reported as having told the jury:
“I commented [that] if anyone touched him they would have me to deal with”, Adams told the court. She said she did so “for protection, because I know what Chris [Brown] is like when he rages”.
The Judge directed that the online version of this article be removed from the Stuff website as soon as it was brought to her attention, which was on the day of publication. The Judge also gave standard directions to the jury emphasising the need to disregard anything they may have read or heard about the case in the media.
Ms Preston submits that Ms Adams’ remarks on her cousin’s propensity to “rage” and to be “very aggro” when he “gets legless” were highly prejudicial and caused irreparable harm to Mr Brown’s case. While she acknowledges the remarks were brief, she says they were no less potent for their brevity, particularly given they came from a family member who had known Mr Brown all her life. Ms Preston says this evidence was highly relevant to the jury’s assessment of two central issues, being the extent of Mr Brown’s involvement and what he thought was likely to happen.
Notwithstanding Ms Preston’s careful submissions, we have concluded there was no real risk that a miscarriage of justice occurred on this ground for the reasons set out below.
The objectionable comments were brief and made near the beginning of what was a lengthy trial. The Judge promptly and firmly directed the jury to ignore these comments entirely as they were irrelevant and inadmissible. Absent any indication to the contrary, it can normally be assumed that the jury will follow the Judge’s directions.
The jury cannot have been in any doubt that the Judge’s direction applied to the “very aggro” when “legless” comment which immediately preceded them being asked to retire and the direction being given. Because there was no suggestion that Mr Brown had been drinking on the night of the murder, let alone that he was grossly intoxicated or “legless”, the jury would have readily understood the Judge’s direction that this evidence was irrelevant and must be disregarded as being of no assistance to them.
It is concerning that the press representative apparently failed to appreciate that the Judge’s direction also applied to Ms Adams earlier “rage” comment. We do not know the circumstances that led to this error. However, we consider it would have been sufficiently clear to the jury that the Judge’s direction applied to both comments.
Although the Judge chose not to repeat the offending comments, thereby avoiding the risk of compounding the unfair prejudice, she referenced her direction to “some responses” (plural) which “gave some discomfort to the lawyers”. The Judge went on to refer to “a couple” which “strayed into opinions about Chris Brown”. She told the jury she had “ruled them inadmissible”, explaining “They are irrelevant” and directed the jury to “ignore [Ms Adams’] comments entirely”. We emphasise in italics the Judge’s consistent use of the plural throughout her direction.
The jury must have known the direction applied to Ms Adams’ comments that had caused discomfort to the lawyers and that there were a couple of these. One such comment was obviously the “very aggro” when “legless” comment that had immediately preceded the direction being given. The only other comment fitting the Judge’s description was the “rage” comment Ms Adams had made a little earlier. As we have already observed, it is obvious simply from reading the transcript that this comment also fell into the category of one causing immediate discomfort to the lawyers. It prompted an immediate interruption to the normal rhythm of question and answer and was punctuated by the Crown solicitor’s acceptance of “fault” and her explanation that she “can’t lead evidence that’s unfair” about what Ms Adams “thought”. These were all clear signals that this comment was inadmissible. We are confident the jury would have had this very recent episode in mind when the Judge gave her direction a short time later that same day.
The Judge was best-placed to gauge whether the “discomfort” caused to the lawyers by both of these comments would have been obvious to the jury at the time, based not only on what was said (as recorded in the transcript), but also on how it was said and other non-verbal indicators that cannot be replicated in the transcript but which are usually obvious to anyone who is immersed in the theatre of the courtroom and closely following the exchanges between counsel and a witness. By tailoring her direction in this manner, the Judge plainly thought that it would have been obvious to the jury that Ms Adams’ “rage” and “very aggro” when “legless” comments both “gave some discomfort to the lawyers” and this was a sufficiently clear description of the inadmissible comments for the purposes of her direction. The Judge was also well‑placed to gauge the jury’s comprehension of her direction as she was directly addressing them.
We conclude that the Judge’s direction was appropriate and sufficiently clear. We note that experienced counsel also thought this was the case at the time.
We do not accept Ms Preston’s submission that Ms Adams’ comments about Mr Brown were highly relevant to the jury’s assessment of the extent of his involvement and what he thought was likely to happen. The “very aggro” when “legless” comment was clearly irrelevant to both issues, especially given there was no suggestion Mr Brown had been drinking on the day of the murder or was intoxicated at any material time.
Ms Adams’ general comment “I know what Christopher Brown is like … when he rages” said nothing about Mr Brown’s actual involvement in the attack and could not have assisted the jury’s assessment of this issue. Mr Brown was charged as a party, not as one of the principal attackers. There was no suggestion that Mr Brown personally assaulted or was otherwise violent towards Mr McAllister. The Crown alleged that Mr Brown assisted by holding the passenger door open at one stage while Mr Whiting-Roff was stabbing Mr McAllister, by restraining Mr McKay and preventing him from getting into the drivers’ seat, and by blocking Mr McAllister by raising his knee or putting his foot out as he ran towards him. Self-evidently, Ms Adams’ comment about knowing what Mr Brown is like when he rages was irrelevant to the jury’s assessment of whether Mr Brown held the passenger door open, restrained Mr McKay or blocked Mr McAllister. The act of holding the passenger door open was captured on CCTV footage. Mr Brown admitted that he raised his knee as Mr McAllister ran towards him. The only disputed issue as to the extent of Mr Brown’s involvement in the attack concerned whether he restrained Mr McKay. This depended on the jury’s assessment of Mr McKay’s evidence. The rage comment could not have contributed to that assessment.

Ms Adams’ rage comment also went nowhere in assisting the jury on the question of what Mr Brown thought was likely to happen that night. How Mr Brown generally behaves when he rages was irrelevant to the Crown case which was instead focused on what Mr Brown and the other defendants thought Mr Whiting-Roff was likely to do having seen him brandishing his knife and heard him say he had been given the “all clear to go stab him, kill him” while at Ettrick Street prior to the attack. As to this question of foresight, the Crown relied on Mr Brown’s own statement to the police the following day that he thought Mr McAllister was “gonna die” or “be seriously injured”. The rage comment was a completely irrelevant aside and we expect the jury to have understood and followed the Judge’s direction to disregard it.
In summary, the Judge promptly directed the jury to disregard these comments entirely at the time they were made, early in what was a lengthy trial. We consider these fleeting comments would have been overwhelmed by other relevant evidence on the central issues and would not have had any material effect on the outcome. By way of illustration, the transcript of the Crown’s closing address ran to 77 pages and focused attention on all key evidence relied on in seeking to prove the case against Mr Brown and the other defendants. Ms Adams’ objectionable comments were obviously irrelevant and not mentioned. Nor were they mentioned by any other counsel in their respective closing addresses or by the Judge in her summing up. We are not persuaded that there is any real risk of a miscarriage of justice having occurred on this ground.

Ground 2 — failure to give a reliability warning regarding Ms Dickey’s evidence

Ms Guy Kidd submits that a reliability warning was required in respect of Ms Dickey’s evidence, contending she had a motive to give false evidence prejudicial to Mr Brown. This was said to be because she hoped to obtain a reduction to her sentence on appeal by giving evidence for the Crown.
It is helpful to start with an understanding of the chronology:

7 June 2017	Night of the murder.
8 June 2017	Ms Dickey makes first formal statement to the police.
27 March 2018	Ms Dickey pleads guilty to murder.
Ms Dickey makes a note in her diary after having spoken to her lawyer about a sentence indication — “I could help the Crown by talking about what the others did which will give me even less time”.
6 April 2018	Ms Dickey makes a second, more detailed, statement to the police. Ms Dickey makes a further note in her diary — “I hope the Crown thinks what I’ve said is good enough so I’m not away forever”.
13 June 2018	Ms Dickey sentenced to life imprisonment with a minimum period of imprisonment of 10 years.[8]
12 July 2018	Ms Dickey files an appeal against sentence to this Court. Although she later abandoned her appeal (on 18 September 2020), the arguments she intended to advance were that the minimum period of imprisonment was manifestly excessive because of her age, prospects of rehabilitation, and her assistance in giving evidence for the Crown at the trial.
2 August 2018	Trial commences for Mr Brown and the other defendants.

[8]R v Dickey, above n 2.

Ms Dickey’s account formed part of the evidence relied on by the Crown to establish the narrative leading up to the attack, including the events at Subway and Ettrick Street that night. As summarised above, several witnesses gave evidence about these events, broadly corroborating Ms Dickey’s account. However, Mr McKay and Ms Dickey were the only witnesses to give first‑hand accounts of what happened at the Stadium. Their evidence was particularly important as to what occurred off‑camera, including on the driver’s side of the car where Mr Brown and Mr McKay were for part of the time. Inevitably, the evidence of both these witnesses was subjected to a comprehensive challenge in cross-examination by Ms Guy Kidd and other defence counsel.
Ms Guy Kidd submits that a reliability warning in relation to Ms Dickey’s evidence was particularly required “in light of the obvious unreliability and inaccuracy” of Mr McKay’s recollection. Mr McKay accepted in cross-examination that he made several errors in his police interview (made on the night of the murder) and in his evidence-in-chief, including:
(a)the location of the car when Mr McAllister got out and walked towards the stands with Ms Scheepers;
(b)that a male was holding Mr McAllister in a headlock on the passenger side of the car when in fact it was Ms Dickey;
(c)that Ms Dickey arrived with a group of people when Mr McAllister was in a headlock, when in fact Ms Dickey was already there holding Mr McAllister in a headlock; and
(d)that he physically put Mr McAllister into the passenger side of the car and shut the door whereas in fact Mr McAllister got into the car unaided.
After being shown the CCTV footage, Mr McKay accepted he made these errors. His explanation, which seems entirely plausible, was as follows:
Obviously, it was like a big night, everything was going on at the, ah, same time. I had so much in my head and I was in shock and had, ah, just a lot of emotions going on obviously, and um, that’s what I thought I saw, and that’s what I told in my statement on the night.
Ms Guy Kidd submits that Ms Dickey gave “key pieces of evidence” against Mr Brown that were not supported by other evidence, in particular that:
(a)Mr Brown was wearing a balaclava and holding a black-handled knife in the bedroom at Ettrick Street; and
(b)Mr Brown was at the car at the end of the incident, pushed Mr McKay and shut the door with one hand.
Ms Dickey maintained her evidence despite extensive cross-examination from counsel for all five defendants, including on these aspects. She was not shaken in any material respect. While she readily accepted that part of her motivation in making her second statement to the police was to get a lesser sentence on appeal, she emphatically denied that her evidence at trial was untruthful. We set out this part of Ms Guy Kidd’s cross‑examination of Ms Dickey:
Q.… So you were sentenced to life imprisonment and a minimum period of 10 years’ imprisonment.
A.       Yes.
Q.       Now you want that sentence to be less don’t you?
A.       I would like it to be, but I don’t expect it to be.
Q.Well you’ve filed an appeal to the Court of Appeal against that sentence, haven’t you?
A.Yes.
Q.Am I right in understanding that you again wish to have that reduced or changed to get rid of the life imprisonment aspect?
A.I would like it to, yes.
Q.A life sentence for you, at the age of 17, must seem like a very long time.
A.Yes.
Q.Do you agree, Miss [Dickey] that you are someone who is prepared to tell a lie to a person in authority?
A.Used to, not now.
Q.Well you’re also in addition, you are someone who is prepared to tell a lie to a person in authority when you know it may be used in evidence.
A.No.
Q.You’re quite sure about that?
A.I’m quite sure.
Q.Sure you’ve never been that person?
A.I lied in my first statement, yes, but that was because I was protecting people who I thought were my friends.
Ms Guy Kidd then turned to the lies Ms Dickey acknowledged she had made in her first statement to the police on the day following the murder. Ms Dickey admitted three lies, all concerning the text she sent to Mr McAllister’s stepmother shortly after the attack (quoted above at [42]). The first was her denial to the constable of having had any contact with Mr McAllister’s stepmother after the attack or having sent the text. The second was when Ms Dickey maintained this denial to her mother while the interviewing constable was out of the room. The third was her denial of having sent the text, even after being shown a screenshot of it by the constable. She claimed that she could not have sent the text message because her phone was flat; she had removed the SIM card and battery and left the phone on charge at Ettrick Street when the group left for the Stadium. This was untrue.
Ms Dickey also readily accepted Ms Guy Kidd’s propositions that she lied to “escape an unpleasant truth” and “to make [herself] not look so bad”.
During the first break while the Judge was summing up to the jury on 5 September 2018, Ms Guy Kidd asked her to give a reliability warning concerning Ms Dickey’s evidence under s 122 of the Evidence Act 2006. This section relevantly reads:
122 Judicial directions about evidence which may be unreliable
(1)If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—
(a)whether to accept the evidence:
(b) the weight to be given to the evidence.
(2)In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:
…
(c)evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
…
(3)In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—
(a)if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or
(b)if the Judge is of the opinion that there is any other good reason not to comply with the request.
(4)It is not necessary for a Judge to use a particular form of words in giving the warning.
…
The Judge declined to give such a warning. She set out her reasons in a ruling subsequently issued on 12 September 2018.[9] In particular, the Judge was not persuaded Ms Dickey had a motive to lie. After referring to Ms Guy Kidd’s cross‑examination of Ms Dickey regarding her lies to the police and hope for a reduction to her sentence in return for giving evidence, the Judge continued:
[8]       The inference which was raised through these questions was that in order to get a reduced sentence, Ms Dickey, who was capable of lying, would “gild the lily” to support the Crown case. It is this, which would comprise her “motive” for giving unreliable evidence for the purpose of s 122(1)(c). However, this proposition was not expressly put to her in cross-examination, and, as Ms Thomas elicited in re-examination Ms Dickey’s diary recorded that she would “help the Crown by talking about what the others did which would give me even less time which means I’m getting what I want for my voice to be heard”.
[9]       In the circumstances, as elicited in cross-examination, I do not consider that it is a logical conclusion that Ms Dickey has a motive to lie. There is no obvious connection between wanting to give evidence for the Crown to reduce a sentence, and having a motive to lie. There is also nothing before the Court to suggest that Ms Dickey’s personal circumstances would be better advanced by her lying, than by giving honest evidence. Indeed, if she lied, and was found to have done so, that would be counterproductive to the Crown case and, therefore, to the assessment of any entitlement to a discount for her assistance.
[10]     In my view, there is a difference between her having a motive for agreeing to give evidence for the Crown and having a motive to lie, and her motive should be categorised in the former camp. It does not mean she may not lie, but it does not constitute a circumstance which falls into s 122(1)(c), where there is an obvious motive to lie.
[11]     For this reason, I consider the standard directions regarding the assessment of evidence and relevance of having told lies will suffice in Georgia Dickey’s case.
(Emphasis added.)
[9]R v Brown [2018] NZHC 2345 (Ruling No 18 of Dunningham J).
Ms Guy Kidd submits this reasoning overlooked that it was put to Ms Dickey that she had lied, that she had “embellished” her account and that she was wrong in significant portions of her evidence. Further, Ms Guy Kidd points out that counsel for Ms Murray directly put it to Ms Dickey in cross-examination that her account about Ms Murray having a knife was a “made-up story” motivated by her hope of getting a reduction in her sentence:
Q. I’m putting to you that you’ve cooked up a story about this knife. Do you understand that?
A.        Understand.
Q. Well I’m saying that that’s what you’ve done, that the knife is a made‑up story. Made-up by you. Do you understand that?
A.        I understand that, but that is, no, that is not correct.
Q.And that your motivation for doing that is that you’re thinking that that’s going to help you get a lighter sentence. Do you understand that?
A.        Yes.
Q.        Well I’m putting it to you, that that’s exactly what’s happening here?
A.        No. That is not correct.
Section 122(2)(c) is not confined to circumstances “where there is an obvious motive to lie”. The subsection requires only that the witness “may have a motive to give false evidence that is prejudicial to a defendant”. Ms Dickey clearly had a motive to assist the Crown — she acknowledged this. Her evidence was undoubtedly prejudicial to Mr Brown. She may not have had a motive to give false evidence, but that was a possibility the jury needed to assess on the whole of the evidence, including Ms Dickey’s diary note after making her second statement to the police on 5 April 2018 — “I hope the Crown thinks what I’ve said is good enough so I’m not away forever”. We consider s 122(2)(c) was engaged.
As s 122(3) makes clear, a judge is not required to give a warning merely because s 122(2) is engaged and such a direction has been sought. However, there must be some good reason not to comply with the request. The leading case on s 122 directions is the Supreme Court’s decision in CT v R.[10] Although that case concerned historical sex offending (engaging s 122(2)(e)), the following important general observations were made by William Young J, writing for the majority:[11]
[50] Judges should also bear in mind that the whole premise of the section is that it is not always appropriate to leave it to counsel to point out the risks associated with particular types of evidence. For instance, in a case which is subject to s 122(2)(d) [prison informants], it could hardly be suggested that it is appropriate for the judge to simply leave it to counsel to point out the risks associated with such evidence. In such circumstances, the warnings should have the imprimatur of the judge. As well, although s 122 does not mandate the giving of a warning, the language of s 122(3) also warrants careful attention. Section 122(3)(a) has no application to cases of the present kind (because the evidence in question is so central to the case) and s 122(3)(b) shows that in the absence of good reason to the contrary such a warning should be given. A general view that such warnings are generally unnecessary or inappropriate is thus inconsistent with the premise of the section and cannot constitute a good reason not to give a warning for the purposes of s 122(3)(b).
[10]CT v R [2014] NZSC 155, [2015] 1 NZLR 465.
[11]At [50] per Elias CJ, McGrath and William Young JJ.
This Court subsequently held in B (CA58/2016) v R that the essential question is whether the jury is likely to be materially assisted in its consideration of the evidence by a caution or warning from the Judge.[12] The Court observed that in some cases the judicial imprimatur of a reliability warning can artificially tip the scales against the witness and be misinterpreted by the jury as “a subtle signal that the judge thinks the witness is lying”.[13] This was why such a warning was held not to be required in that case or, more recently, in Reddy v R and Skantha v R.[14] The observations of Richardson J in R v Harawira remain apposite:[15]
In the end the fundamental question must be whether the summing up met the justice of the particular case. Difficulties will tend to arise where the potential unreliability of the witness is not obvious for the jury to see. … Clearly where a warning is proper it need not be conveyed in the language of “danger”, “warning” and “caution”. What is essential in such a case is to bring home to the jury the need for care in relying on that evidence.
[12]B (CA58/2016) v R [2016] NZCA 432 at [59].
[13]At [61].
[14]Reddy v R [2020] NZCA 16 at [48] and Skantha v R [2021] NZCA 117 at [69].
[15]R v Harawira [1989] 2 NZLR 714 (CA) at 726.
It would have been obvious to the jury that the reliability of Ms Dickey’s evidence was an important issue they needed to assess. So too was the reliability of many other fact witnesses, including Mr McKay. Not only was Ms Dickey’s reliability subjected to vigorous challenge in cross‑examination and in counsel’s closing addresses, the Judge also specifically addressed this in her summing up. After giving general directions to assist the jury in their assessment of the evidence given by the witnesses, the Judge gave the following direction tailored to the reliability of Ms Dickey’s evidence:
[27] This is also a case where there are accusations that witnesses have lied in their evidence, whether to support a friend, undermine someone who is not a friend, cover up … for some embarrassing or stupid behaviour on their part or gain a particular advantage for themselves. Again, just as for the defendants, you have to make similar assessments. First, is it a lie? Just because you are invited to find that a witness has lied does not mean they have. This is an assessment for you to make. If you are satisfied it is a lie, and of course you have heard Georgia Dickey openly admit that she lied in her first statement to police, you still need to decide what the effect of that is on the balance of the evidence that the witness gives. Does it undermine it all or do you accept that the lie or lies of the witness can be explained or separated from the other evidence that witness has given.
(Emphasis added.)
The Judge reminded the jury of the direct challenge to the reliability of Ms Dickey’s evidence by counsel for Ms Murray, including because she was motivated to tell lies to assist the Crown in the hope of getting a reduction in her sentence:
[l13] However, [counsel] says that Georgia Dickey's evidence is unreliable and untruthful. [Ms Dickey] has proved she is capable of lying in the past and she has got a motive to lie about Ms Murray. …
…
[121] The defence, however, says that there is no reliable evidence that [Ms Murray] was present when Brayden Whiting-Roff displayed the knife and talked about stabbing, and, again, [counsel] points to the fact that Georgia Dickey’s evidence is, in his submission, unreliable. [Ms Dickey] “bizarrely” denied that Natasha Ruffell and Crystal Murray were away at Countdown for a significant period of time, even when confronted with the evidence about that. …
The Judge also reminded the jury of the challenge to the reliability of Ms Dickey’s evidence made by counsel for Ms Ruffell:
[217] … Georgia Dickey’s evidence about who was present when Brayden Whiting-Roff was brandishing the knife is unreliable. She got it wrong when she thought that Natasha Ruffell was there when she was obviously away at Countdown for that part of the evening. …
While another judge may have given a more extensive reliability warning in relation to Ms Dickey’s evidence, we consider the potential unreliability of her evidence and the reasons for this would have been obvious to the jury and the Judge’s directions were adequate. It is unlikely that a more extensive tailored direction would have provided further material assistance to the jury in all the circumstances.

The reliability of the evidence given by several of the witnesses was plainly a key trial issue for the jury to assess. If the Judge had singled out Ms Dickey by giving a reliability warning only about her evidence, this could have been misinterpreted by the jury as an indication the Judge did not believe her account.
The lies Ms Dickey acknowledged in her first police statement when cross‑examined by Ms Guy Kidd did not relate to the involvement of Mr Brown or any of the other defendants. While she had a clear motivation to give evidence for the Crown, there was no apparent reason why she would seek to give false evidence about the involvement of Mr Brown. Ms Guy Kidd did not put this proposition to Ms Dickey directly.
We consider Ms Guy Kidd overstates the significance of the evidence Ms Dickey gave that she says was not corroborated by other evidence (set out at [75] above). It was not contested that Mr Brown was wearing a balaclava at the time of the attack. This was confirmed by Mr Brown himself in his police statement and can be seen on the CCTV footage. Mr Brown also accepted that he took the knife to the Stadium and left it in the car. This not only provides some support for Ms Dickey’s evidence that Mr Brown wore the balaclava and displayed the knife at Ettrick Street, it also diminishes the significance of Ms Dickey’s evidence about this. Whether or not Mr Brown pushed Mr McKay and shut the door with one hand “at the end of the incident” is of little moment. The attack was almost over by then. The Crown relied on the evidence of Mr Brown’s earlier involvement — holding the door open while Mr McAllister was being stabbed and punched, restraining Mr McKay during the subsequent part of the attack and kicking Mr McAllister as he tried to escape.
The relative insignificance of Ms Dickey’s evidence to the Crown case against Mr Brown is illustrated by the fact the Judge made no reference at all to her evidence when addressing the question trail for Mr Brown in her summing up:
[171]    So I want to turn now to the question trail for Mr Brown. Looking at alternative one, question two asks you whether you are sure that Mr Brown encouraged or assisted Mr Whiting-Roff to murder Mr McAllister by assaulting him with a knife. The Crown alleges several acts of encouragement or assistance. These are taking his own knife to the stadium, being purposefully present and on hand if needed, holding the car door open while Mr Whiting-Roff stabbed Mr McAllister, restraining Mr McKay and kicking Mr McAllister when he tried to escape.
[172]    The Crown says that it is logical inference that Mr Brown encouraged Mr Whiting-Roff by taking his own knife to Stadium Southland. Whether he produced it or not, it would have made Mr Whiting-Roff feel supported in his actions. In addition, given the clear history of the matter and his own admissions about what he had heard that night, he was purposefully present to assist in those actions. Mr McKay’s evidence is relied on to say that Mr Brown, the brown balaclava person, prevented him from getting into his car by shutting the door on him and holding him back so he cannot get into the door. He also gives evidence of the fellow with the brown balaclava holding him down and about the man with the balaclava lifting his leg and connecting with Jack’s leg and then after that occurred, [Mr Whiting-Roff] pulls out a knife. Any one of these things, says the Crown, was an act of encouragement or assistance for Mr Whiting-Roff.
[173]    Ms Guy Kidd, however, points out that Mr McKay’s evidence was erroneous on many fronts. He conceded he was not sure on these points in cross-examination. In terms of the knife, while Mr Brown acknowledged he took a knife, he never used it and there was no evidence that it was with him at the stadium. If he had intended to help he would have carried it with him and displayed it, but he did not do this. In his video interview he denies touching the car door. He also says he did not restrain Braydon McKay, but Brayden Whiting-Roff, and he only put his leg up as an act of defence when Mr McAllister was running towards him and he thought he was going to tackle him.
[174]    If you are sure that any one of these actions did in fact encourage or assist Mr Whiting-Roff to murder Mr McAllister, you still need to turn to question three and look at his intention. The Crown says that his intention is obvious from his knowledge that Jack was going to die or going to be seriously injured. However, Ms Guy Kidd says his intent in going there that night was quite different from Brayden Whiting-Roff’s. Brayden Whiting-Roff was already on a hunt for Jack McAllister. He had gone to the Amble on Inn without these people to find him. Mr Brown was not part of that. While Mr Brown might have been angry, he wanted to go there to talk and get to the bottom of the allegation. Indeed, he even lifts his balaclava when he initially meets Jack and Brayden at the car, which Ms Guy Kidd says is consistent with that.
[175]    She also points out that Jack McAllister was Mr Brown’s cousin. There had been ups and downs with Jack McAllister, but in fact those instances show that he was full of hot air and nothing ever came of it. Even on the 5th of June in his text with David Wilson, where David Wilson says he knows where Jack is and asks “you keen”, the reply is “on what”. It is the unsatisfactory call with [Mr McAllister’s stepmother] which makes Mr Brown determined to find out the truth or not about the allegations of sexual abuse and his intention when he goes to the stadium is to get to the bottom of that. That intention she says is reinforced by various statements in his DVD interview such as “I didn't want Jack to get hit whatsoever. I just wanted to talk to him”.
[176]    The fourth question asks you whether at the time he assisted or encouraged Mr Whiting-Roff, he knew that Mr Whiting-Roff would kill Mr McAllister and would do so either intending that outcome or consciously running the risk of it. Much of the evidence the Crown relies on I have already discussed, but the Crown points in particular, to the various statements he makes in his video interview, where he acknowledges Brayden Whiting-Roff said he was going to “take Jack out” and when asked what he thought that meant, he said [it] means “Jack’s gonna die”. That, says the Crown, is enough to establish his foresight of Brayden Whiting-Roff’s murderous intention.
[177]    Ms Guy Kidd, however, again points to the disconnect between what he heard Brayden Whiting-Roff saying and what he understood would actually happen. He says he did not think Brayden was serious about stabbing him and taking him out.
[178]    The next questions deal with s 66(2). I am not going to go through these in the same detail as much of what I have already covered is relevant to whether there was a shared understanding or agreement to carry out a serious assault, so here you must consider the level of assault that Mr Brown might have anticipated and whether that reached the threshold of being something more than just an assault. The second question I am going to focus on is question nine, which is whether Mr Brown knew or foresaw the real and substantial risk that in carrying out the serious assault on Mr McAllister, one of the other parties would intentionally kill him or would consciously run that risk.
[179]    The Crown relies again on Mr Brown's own statement and the acknowledgements there that he had heard Brayden expressly say that he was gonna stab Jack, take him out and he had “orders to kill him”. The issue here is whether you can dismiss his explanations that, despite the frankness of that message, and his own admission that he thought “Jack is gonna die, or Jack’s gonna be seriously injured”, he did not foresee that as a probable consequence.
For these reasons, we conclude that the decision to decline to give a specific reliability warning under s 122 concerning Ms Dickey’s evidence was not an error. The Judge’s directions as to the reliability of Ms Dickey’s evidence were adequate. Even if this was an error, we do not consider there is any real risk that the outcome of the trial was affected.

Ground 3 — recanted evidence

The leading case on conviction appeals brought on the basis of recanted evidence is the English Court of Criminal Appeal’s decision in R v Flower.[16]The most frequently quoted passage is the following:[17]
Witnesses may have second thoughts for a variety of different reasons. Some become emotionally disturbed, others brood on the effect of their evidence, whilst others are subject to more tangible pressures to induce them to depart from the truth. It is the witness’s state of mind at the trial which matters and this ought to be judged by reference to the circumstances prevailing at that time.
[16]R v Flower [1966] 1 QB 146 (Crim App).
[17]At 150.
This Court summarised the applicable principles in Hamon v R, noting that the critical enquiry is why the complainant has recanted — whether it is because the earlier evidence was untrue or because other pressures have come to bear upon the complainant.[18] Courts must be alive to human frailties in this area. If the court is satisfied that the recantation is untrue, the appeal will be dismissed. If there is a doubt, a retrial will ordinarily be required.[19]
[18]Hamon v R [2013] NZCA 540.
[19]At [62].
Mr Brown filed an affidavit sworn on 20 January 2020 attaching a letter he received from Ms Dickey on 15 August 2019 which he relies on to establish that she recanted the evidence she gave at trial. An affidavit from Ms Dickey affirmed on 12 February 2021 was filed in response. Ms Dickey and Mr Brown were both cross‑examined on this issue at the hearing of the appeal. The further evidence is obviously critical to this ground of appeal and we grant leave to adduce it.
Ms Dickey and Mr Brown frequently corresponded from prison starting in December 2018, soon after Mr Brown was sentenced. The relevant letter was the last letter Ms Dickey wrote to Mr Brown. It reads as follows:
Chris
No, what the fuck. Cut out this talk about how it’s all your fault! you didn’t do anything! I set you’s all up from the start! don’t you understand he’s gone because of me! not you not Brayden, ME! I fucking lied and I set you’s all up Brayden wouldn’t have even stabbed him if it weren’t for me you don’t understand Chris your not at fault no one is but me that’s just reality okay. I'm pulling my appeal im alshit and lied at trial I couldn’t give two fucks okay and me and you what even is that your honestly dreaming if you think we could ever be the diffrence between us is im a criminal and do not want to change and you are not and you want to change. Tell this to your lawyer I don’t care it’s algoods I just wanted you’s to come down with me but I was wrong. Me and you can never be and you know it deep down. You’ll be out soon, don’t write back im done okay i’ll pull my appeal this morning. You know what im not even sorry shit happens it’s just the way you deal with it.
Ms Dickey filed a notice of abandonment of her appeal against sentence on 18 September 2020.
Mr Brown says in his affidavit that some parts of Ms Dickey’s evidence at trial were true but he says other parts were lies. In particular, he identifies the following three aspects:
10.1Her evidence that it was me who told her at Subway that Jack was at the Amble on Inn, and that we were going to take “carloads” to get him. I never told [Ms Dickey] that Jack was at the Amble on Inn and the lawyer for Laura Scheepers … cross-examined her to show that she got that information in a private message from Brayden Whiting-Roff before I was even at Subway that night. I never told her we were going to take “carloads”, either.
10.2Her evidence that Brayden Whiting-Roff was “shadow boxing” with a knife in Crystal Murray’s bedroom at … Ettrick Street when I was present; and
10.3The parts where she told the Court I had pushed or shoved Braydon McKay and shut the car door which he had opened after Jack had been stabbed. I never did those things, I only talked to Braydon McKay and shook his hand two times.
(Footnote omitted.)
In her affidavit dated 12 February 2021, Ms Dickey explained the context for the statements she made in her letter to Mr Brown but she maintained that the evidence she gave at the trial was true:
5.On one occasion Jack McAllister and I were drinking on the back of a truck. We both got pissed. He put his hand down my pants. I sorted that out with Jack McAllister but later told Chris. He made a big deal out of it and he told [Mr McAllister’s stepmother] … She got annoyed and made claims of slander. Everything blew up from there.
6.… In his affidavit at paragraphs 13 through to 22 Chris describes letter writing between us. What he says is true. We were in a relationship through our letters but I didn’t believe it would work. That is why I said in my letter exhibited to his affidavit: “Me and you can never be and you know it deep down”.
7.Because I told Chris what Jack McAllister had done to me I feel responsible for his murder. If I hadn’t told Chris, Jack McAllister would not have died. Chris would not now be in prison for his murder.
8.What I told the police in my statement and the evidence I gave in court was the truth. At paragraph 10 of his affidavit Chris sets out some matters which he said were lies. In respect of paragraph 10.1 both Chris and Brayden Whiting-Roff told me that Jack McAllister was at the Amble On Inn. My evidence Chris describes at paragraph 10.2 was the truth. Also my evidence which Chris describes at paragraph 10.3 was true.
8.What I wrote in my letter to Chris that I set them all up and lied was not true. Because I felt responsible for Chris being in prison, I thought saying that I lied might help him get out. I never thought through the consequences of writing that.
Ms Dickey confirmed the contents of her affidavit at the hearing of the appeal and was cross-examined on it. We are satisfied Ms Dickey has not, in truth, recanted any of the evidence she gave at trial. Although Ms Dickey stated in her letter to Mr Brown that she lied at trial, she did not specify any respect in which her evidence was false. We accept her explanation for making the statements in her letter to Mr Brown — she felt responsible for the events that unfolded and wished to assist Mr Brown with his conviction appeal. Even if Ms Dickey’s letter could be construed as a recantation, we are satisfied the recantation is untrue. This ground of appeal must accordingly fail.

Result

The application to adduce further evidence on appeal is granted.
The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[2021] NZCA 120

20 April 2021 at 9.30 am