R v Hutton

[2008] NZCA 126

IN THE COURT OF APPEAL OF NEW ZEALAND

CA193/06

[2008] NZCA 126

THE QUEEN

v

HARVEY ANDREW HUTTON

Hearing:         3, 4 and 5 March 2008

Court:            Arnold, Baragwanath and Keane JJ Counsel:   C S Withnall QC for Appellant

R P Bates and M J Grills for Crown

Judgment:      19 May 2008 at 10 am

JUDGMENT OF THE COURT

A        Leave to adduce additional evidence is refused.

B        The appeal is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

R V HUTTON CA CA193/06  19 May 2008

Table of Contents

Para No.

Introduction   [1] Background   [4] Issues on appeal  [10] Verdict unreasonable and against the weight of evidence  [13] Geomorphology  [16] Mineralogical and geochemical evidence  [17]

Fresh evidence  [26] The Brown Rock  [31] MS3   [38] Mining by others on the Cascade Plateau  [44]

M-section steel  [51] The Sausage  [54] MS1 and 2  [58] Source of upland snowflake – scientific evidence  [68] Additional evidence not disclosed by the Crown  [80]

(i)	Photographs	[82]
(ii)	Mr Bradford	[85]
(iii)	Brown paint	[88]

Conclusion in relation to fresh evidence ground  [91] Unfair conduct by Crown and Police  [99] Inadmissible evidence  [100]

Wealthy man allegation  [109] Unfounded attack on Professor Cooper  [114] Reversal of onus  [119] Exhortation to use common sense  [121] Interception warrant  [123]

Misdirection or non-direction  [133] Burden of proof  [134] Expert evidence  [136] Use of intercepted conversations  [165]

Decision  [168]

Postscript – scientific evidence  [169]

Introduction

[1]      Following a jury trial before Judge Macdonald the  appellant  was  convicted

on  two  representative  counts  of  stealing  pounamu  (or  greenstone)  that  was  the property of Te Runanga o Ngai Tahu.

[2]      Count  one  covered  the  period  29  October  1997  (the  date  on  which  the

Ngai Tahu   (Pounamu   Vesting)   Act   1997   (the   Act)   came   into   force)   until

30 September  2003  and  count  two  the  period  1  October  2003  until  4  May  2004. (Two counts were required as a result of amendments to the Crimes Act 1961, which reorganised the overall scheme of the theft provisions from 1 October 2003.)

[3]      The appellant was sentenced to 18 months imprisonment, with leave to apply

for  home  detention,  and  was  ordered  to  pay  reparation  of  $300,000.   He  appeals against conviction.

Background

[4]      The appellant was found in possession of over 10 tonnes of what was referred

to  at  trial  as  “upland  snowflake”,  a  high  quality  pounamu  characterised  by  white patches  resembling  snowflakes.  The  pounamu  was  located  in  May  2004  at  the appellant’s farm at Makarora, at the head of Lake Wanaka.  It was placed around the farm  in  flax  bushes  and  under  macrocarpa  trees.   The  Crown  alleged  that  he  had mined   this   pounamu   from   the   Cascade   Plateau   in   South   Westland   between

29 October 1997 and 4 May 2004.  If so, by virtue of the Act, the pounamu was the property of Ngai Tahu.  The appellant said that the pounamu had come not from the Cascade Plateau but from Big Bay where he had a mining licence.

[5]      No  witness  gave  evidence  that  the  appellant  had  been  observed  mining  or cutting  upland  snowflake  on  the  Cascade  Plateau.  Accordingly,  the  Crown  case against the appellant was circumstantial.   In his submissions, Mr Bates said that the Crown relied on the following evidence:

(a)The  upland  snowflake  found  at  the  appellant’s  Makarora  farm  was hidden in various ways at different locations around the farm.

(b)The appellant was videotaped lifting a large slab of pounamu from the Cascade Plateau by helicopter on the evening of 10 December 2003. The  slab  was  later  found  at  his  farm.   Initially the  appellant  denied

any involvement in this incident, but when confronted with the video, accepted that he had removed the pounamu.

(c)       There   were   several   sites   on   the   Cascade   Plateau   at   which   the appellant had stored pounamu.  (These were referred to in the case as E1, E2 and E3.)   These were close to two sites on the Plateau where mining was said to have taken place (referred to in the case as MS1 and  MS2).       The  Crown  suggested  that  the  close  proximity  of  the storage  and  mining  sites  was  not  coincidental,  and  that  the  storage sites were part of the infrastructure of the appellant’s mining activities

on the Cascade Plateau.

(d)Mr Boustridge, a man with long experience of West Coast pounamu (as a prospector, a miner, a supplier and a carver) and an international reputation as a pounamu carver, identified the pounamu found in the appellant’s possession as having come from the Cascade Plateau.

(e)       There was expert evidence linking the appellant to the mining which had  taken  place  at  MS1  and  MS2  during  the  relevant  period.   This evidence  came  from  Professor  Weaver  of  Canterbury  University,  a geochemist, and Dr Coulsen of Environmental Science and Research,

a  chemist.     Professor  Weaver  was  retained  to  ascertain  whether Mr Boustridge’s  visual           identifications    of    particular    pieces    of pounamu as having come from the Cascade Plateau or Big Bay could

be  supported  scientifically.    He  concluded  on  the  basis  of  X-Ray Diffraction (XRD) and X-Ray Fluorescence (XRF) analyses that the mineral  and  chemical  characteristics  of  upland  snowflake  found  on the appellant’s property were consistent with a Cascade Plateau origin and  inconsistent  with  a  Big  Bay  origin.       Dr Coulsen  conducted  an analysis of brown paint found on pounamu from the appellant’s farm, from  the  appellant’s  customers  and  from  MS1.   She  concluded  that the  paint  on  these  various  samples  came  from  the  same  source,  or from a different source of the same paint.

(f)       A  particular  type  of  steel,  known  as  M-section  steel,  was  found  at MS1  and  at  E1,  providing  a  further  link  between  the  appellant’s storage activities and mining on the Plateau.

(g)       The appellant made inculpatory statements during various telephone conversations intercepted by the Police between 5 and 26 May 2004 pursuant     to         an  interception                   warrant    issued    in    respect     of Mr David Saxton.                  He  is  a  friend  of  the  appellant’s  who  was  also being  investigated  in  relation  to  the  theft  of  pounamu  from  the Cascade Plateau.      In  particular,  the  following  exchange  occurred between the appellant and Mr Saxton at a time when Mr Saxton had arranged for one of his employees to stay on the Cascade Plateau to observe what the police were doing there:

Saxton:Yeah I’ve got the, I got aye ah, I’ve got  the, he gave me a phone call down there and ah fishing’s

a bit hot down there.

Hutton:    Is it?

Saxton:    Mmm.

Hutton:    They actually found something?

Saxton:    Mmm may, may be. Hutton:   Oh yeah … oh they land? Saxton:        Mmm hym.

Hutton:    Oh fuck.

Saxton:So ah yeah I’ll find out more ah yeah so how are you going?

Hutton:    Ah pretty good.

Saxton:    That’s alright.

Hutton:Yeah  what  we’ve  got  to  do  is  just  fucken  um fucken deny everything though.

Saxton:    Aye?

Hutton:    Just fucken nothing to do with us.

[6]      In his evidence at trial the appellant denied the allegations against him and said that he had obtained the pounamu legitimately from an area known as Big Bay, where he held a mining licence from 1990 until 2000.   He said that  a  19 year  old Canadian,  Leyland  Bradford,  had  carried  out  the  mining  between  December  1995 and  February  1996.      (Mr  Bradford  has  since  died.)        The  appellant  said  that Mr Bradford camped at Big Bay and mined several pounamu boulders, including a large upland snowflake boulder.  Mr Bradford had carried out this work by himself. The appellant said that he had provided support by helicopter and had transported the pounamu pieces in stages from Big Bay to a road head at Martyr Homestead, a farm

on  the  Cascade  River  flats.    The  pieces  were  taken  there  so  that  they  could  be trucked  to  his  farm  at  Makarora.   The  appellant  said  that  he  had  stored  pieces  of pounamu at the various sites on the Cascade Plateau initially because he was forced

to  do  so  by  bad  weather  but  later  for  convenience.     He  denied  that  he  had deliberately hidden the pounamu on his farm and said that it had been transported to the various locations where it was found by motor vehicle (rather than by helicopter,

as the Crown alleged).

[7]      The appellant called two experts, Professor Cooper and Dr Reay.   Both are geologists           from the      University     of   Otago.             Professor    Cooper    challenged Professor Weaver's   evidence.      He   said   that   Professor   Weaver’s   differentiation between  the  sources  of  upland  snowflake  and  so-called  Big  Bay  pounamu  was scientifically unsound and wrong.  He described it as “geologically naïve”.  He said that  upland  snowflake  and  Big  Bay  pounamu  had  come  originally  from  the  same primary source (the Dun Mountain Ophiolite Belt) and had been dispersed randomly throughout the region (including the Cascade Plateau and Big Bay) by glacial action. While   he   did   not   dispute   that   upland   snowflake   might   be   found   on   the Cascade Plateau, he did say, on the basis in part of his own observations, that upland snowflake was also found in the Big Bay licence area.   Professor Cooper also said that  it  could  not  be  demonstrated  that  the  upland  snowflake  in  the  appellant’s possession came from the Cascade Plateau rather than Big Bay.  Dr Reay gave what was in effect supporting evidence.

[8]      The  Crown  argued  that  the  appellant’s  account  as  to  the  source  of  the pounamu was not credible because:

(a)Neither the appellant’s diary nor his helicopter logbook for the period late  1995-early  1996  indicated  that  he  had  made  the   numerous helicopter trips to Big Bay that would have been necessary if he had been  supporting  a  mining  operation  there  and  moving  substantial quantities of pounamu.   (The appellant accepted that the flights were not recorded, but said that he made them in any event.)

(b)The appellant’s royalty returns for the relevant period did not record that  he  had  mined  the  pounamu  which  he  claimed  to  have  mined. (The appellant explained this by saying that he did not understand the forms  and,  as  the  obligation  to  pay  royalties  did  not  arise  until  the pounamu was sold, that was the critical time.)

(c)       Mr  Boustridge  identified  the  upland  snowflake  as  coming  from  the Cascade  Plateau  and  not  Big  Bay.            He  claimed  to  be  intimately acquainted  with  the  whole  of  the  Big Bay  licence  area  and,  having explored  it  thoroughly,  said  there  was  no  upland  snowflake  on  it. Mr Boustridge had originally held the mining licence at Big Bay with the appellant and another person, Mr Munro.  There was a falling out, which led to litigation.  As part of the settlement of the litigation, the original  licence  area  was  subdivided  into  three,  with  each  person having  the  right  to  mine  his  one-third.  Hence  Mr  Boustridge’s knowledge  of  the  area.          Mr Boustridge  disputed  in  particular  that there was a large snowflake boulder at the location identified by the appellant,  because,  he  said,  he  had  worked  within  metres  of  the location  and  would  not  have  missed  a  large  and  valuable  pounamu boulder.   (The  appellant  said  that  Mr Boustridge  could  not  possibly have searched the entire area of the licence and said that, in any event,

he was not a credible witness.)

(d)A photograph of the relevant part of Big Bay, taken in 1988, did not show the presence of a large boulder at the location indicated by the appellant.   (For his part, the appellant said that it was there but was

covered by vegetation, and in any event was in the shadow of a large adjoining boulder.)

(e)       Generally  pounamu  mining  is  carried  out  by  two  or  more  people working  together.  This  is  because  it  involves  cutting  or  slicing substantial sections  off  large  boulders  in  situ  with  a  circular  saw  or some other form of cutting device.   Obviously, there is some danger and difficulty involved.  Accordingly, it would be unsafe to leave one person  working  on  his  or  her  own  for  a  substantial  period,  as  the appellant said had occurred.  For this reason, the Crown said that the appellant’s  evidence  that  the  bulk  of  the  mining  of  the  upland snowflake at Big Bay was carried out by Mr Bradford working alone was not credible.

(f)       The  reasons  that  the  appellant  gave  for  leaving  the  pounamu  at  the storage sites on Cascade Plateau did not make sense.

[9]      Clearly, in finding him guilty the jury rejected the appellant’s explanation as

to the source of the pounamu.

The issues on appeal

[10]     Before us, Mr Withnall QC advanced a multiplicity of points, developed in

100 pages of detailed written submissions.   Broadly,  they are  encompassed  within the following propositions:

(a)The  jury’s  verdict  was  unreasonable  and  could  not  be  supported having regard to the evidence.

(b)There is fresh evidence which is sufficiently cogent that it may have affected the outcome of the trial.

(c)       There was unfair conduct by the Crown and the Police.

(d)       The trial Judge failed to direct the jury adequately. We will deal with the appeal under these general heads.

[11]     First, however, we should note that some of the fresh evidence is said to have become available as a result of the trial of David and Morgan Saxton.   (As earlier noted, David Saxton and the appellant were long-time friends.)   The Saxtons were tried  by  judge  alone  on  various  charges  relating  to  the  theft  of  pounamu  in South Westland.   In  a decision dated 25  October  2007  Judge  MacAskill  convicted each on one (representative) count of stealing pounamu owned by Ngai Tahu from the Cascade Plateau between 29 October 1997 and 30 September 2003: DC CHCH CRI-2004-002-000741.   Many  of  the  witnesses  at  the  appellant’s  trial  also  gave evidence           at        the           Saxtons’      trial.  Among         them       were    Mr      Boustridge           and Professor Weaver  for  the  Crown  and  Professor  Cooper  for  the  defence.   Although Mr Withnall was not originally engaged to represent the Saxtons as counsel, he did ultimately represent them at trial.   Many of the issues canvassed at the appellant’s trial were also canvassed at the Saxtons’ trial and have been canvassed again on this appeal.

[12]     The Crown had intended to apply to have the  charges against the appellant and the Saxtons heard jointly.  However, the appellant’s trial was scheduled to begin before the Saxtons’ depositions had taken place.   The Crown applied at a late stage

for an adjournment of the appellant’s trial, so that it could apply to have the charges dealt with jointly if the Saxtons were committed for trial.  Judge Macdonald declined that application: DC DUN TO4/283 21 July 2005.   That decision was inevitable in the  circumstances.   But  clearly  it  would  have  been  preferable  had  the  Crown prepared the cases in a way that enabled them to be dealt with jointly as that would have removed the potential for some of the difficulties that have now arisen.

Verdict unreasonable and against the weight of evidence

[13]     The  question  of  the  approach  to  be  adopted  where  it  is  argued  that  a  jury verdict  is  unreasonable  was  discussed  by  the  Supreme  Court  in  R  v  Owen  [2007]

NZSC 102.  The Court (at [13]) expressly endorsed the following propositions from the principal judgment of this Court in R v Munro [2007] NZCA 510:

(a)The  appellate  court  is  performing  a  review  function,  not  one  of substituting its own view of the evidence.

(b)Appellate  review  of  the  evidence  must  give  appropriate  weight  to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.

(c)       The weight to be given to individual pieces of evidence is essentially

a jury function.

(d)      Reasonable minds may disagree on matters of fact.

(e)Under our judicial system the body charged with finding the facts is the jury.  Appellate courts should not lightly interfere in this area.

(f)       An  appellant  who  invokes  s 385(1)(a)  [of  the  Crimes  Act]  must recognise that the appellate court is not conducting a retrial on the written record.  The appellant must articulate clearly and precisely in what respect or respects  the  verdict  is said  to  be  unreasonable  and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.

[14]     The Court cited the following extract from Munro, and specifically endorsed the highlighted sentence, with the exception of the use of the word “deemed”:

[86]     The correct approach to a ground of appeal under s 385(1)(a) is to assess, on the basis of all of the evidence, whether a jury acting reasonably ought to have entertained a reasonable doubt as to the guilt of the appellant. We consider that the word “ought” is a better indication of the exercise to be conducted than the word “must” used in [R v Ramage [1985] 1 NZLR 392 (CA)]. It emphasises the task that the Court has to perform. This test also,

in our view, accords with the statutory wording.

[87]     …  The  test  is  not  whether  the  verdict  is  one  that  no  jury  could possibly have come to.  A verdict will be deemed unreasonable where it is a verdict  that,  having  regard  to  all  the  evidence,  no  jury  could  reasonably have  reached  to  the  standard  of  beyond  reasonable  doubt…  .   The  Court must always, however, keep in mind that it is not the arbiter of guilt, and that reasonable minds might disagree on findings of fact … .

We address this ground of appeal on this basis.

[15]     Mr Withnall argued that the jury could not, on the evidence before it, have excluded   as   a   reasonable   possibility  that   the   upland   snowflake   found   in   the

appellant’s possession had come  from  Big  Bay.   Mr  Withnall  emphasised  that  the

Crown theory was not supported by:

(a)       The geomorphology of the area;

(b)       The mineralogical and geochemical evidence.

Geomorphology

[16]     Mr  Withnall  argued,  on  the  basis  of  Professor  Cooper’s  evidence,  that  the pounamu found in Big Bay and on the Cascade Plateau came from the same primary source, namely the Dun Mountain Ophiolite Belt.  It had been transported from that source over time by glacial action. He said that there was no mechanism by which different  types  of  pounamu  from  the  same  source  could  have  been  deposited (exclusively) in different locations. Since they came from the same primary source and  were  subsequently  carried  by  glacial  action  to  the  Cascade  Plateau  and  to Big Bay, high quality upland snowflake and lower quality Big Bay pounamu would

be randomly distributed over both areas.   Examples of Big Bay pounamu had been found  on  Cascade  Plateau.   Similarly upland  snowflake  was  likely  to  be  found  at Big Bay.  This supported the view that the appellant’s upland snowflake could have come from Big Bay (or somewhere other than the Cascade Plateau).

Mineralogical and geochemical evidence

[17]     Mr     Withnall    advanced    a     number     of    arguments     in     relation    to Professor Weaver’s evidence.  First, he said that Professor Weaver’s view that there was  a  correlation  between  the  control  samples  taken  from  mining  sites  on  the Cascade Plateau and the upland snowflake found at the appellant’s farm could not be sustained.    Second,  he  challenged  the  adequacy  of  the  control  samples  used  by Professor  Weaver.       Third,  Mr  Withnall  emphasised  that  Professor  Weaver  had accepted  in  cross-examination  that  there  was  a  reasonable  possibility  that  upland snowflake   could   have   been   carried   to   Big   Bay   by   glacial   action.     Finally, Mr Withnall pointed out that pounamu having the same characteristics as so called

Big  Bay  pounamu  was  found  on  the  Cascade  Plateau.   Similarly,  he  said,  upland snowflake could be present in Big Bay as well as on the Cascade Plateau.

[18]     Professor Cooper said in his evidence that he had “established” that upland snowflake occurred at Big Bay as well as on the Cascade Plateau.   This conclusion was consistent with his view of the geomorphology of the region and was supported,

he said, by his own observations.   The appellant had taken Professor Cooper to the site at Big Bay where he said that he had found the upland snowflake boulder.  There was a dip or depression in the ground, filled with brown water.   Professor Cooper fossicked  about  and  found  some  old  mining  tools  and  some  fragments  of  upland snowflake.  He said in his evidence that this find demonstrated that upland snowflake occurred not simply on Cascade Plateau but throughout the region.

[19]     In light of the geomorphological and other evidence, Mr Withnall argued, the jury could not reasonably have excluded the possibility that the upland snowflake in the appellant’s possession came from Big Bay.

[20]     We  agree  that  Professor  Weaver’s  evidence,  standing  alone,  could  not exclude as a reasonable possibility that the appellant’s upland snowflake came from Big Bay.   But, of course, that evidence did not stand alone.   There were numerous strands to the Crown’s argument, and Professor Weaver’s evidence was simply one. Mr Bates emphasised this in the Crown’s closing to the jury.  He said:

And  it’s  accepted,  you  get  to  the  point  where  it  is  geologically  possible, geologically possible that a rock could come from up in the Dun mountain range and end up at Big Bay.   [Professsor] Weaver has accepted that.   He quite  properly said,  “Well,  you  know,  that’s possible”.   Don’t  confuse  the comment  that  because  it’s  geologically  possible,  that  then  makes  it  a reasonable possibility that in light of all this evidence that’s where it came from.  You have to assess all the evidence in relation to that aspect.

[21]     Professor  Weaver’s  evidence  was  consistent  with  the  appellant’s  upland snowflake having come from Cascade Plateau, but no more.  It could not exclude the possibility  that  upland  snowflake  might  be  found  in  Big  Bay.  But  the  important initial question for the jury was whether there was a reasonable possibility that the appellant’s upland snowflake did in fact come from Big Bay.   The other strands of

evidence were, in our view, sufficient to eliminate that as a reasonable possibility.  In particular:

(a)If the appellant’s account was true, his diary and/or pilot’s log should have  recorded  numerous  helicopter  flights  to  Big  Bay in  the  period late 1995–early 1996 when he said that Mr Bradford was mining at Big Bay, with his support.  In fact only two flights were recorded, one

in  his  diary  on  31  December  1995  and  one  in  his  pilot’s  log  on

14 December 1995.   Many flights are recorded before and  after this period, which indicates that the appellant generally kept full records

of his flying activities.  In our view, given the importance of accurate record  keeping  for  maintenance  and  other  purposes,  the  lack  of recorded flights in the relevant period is a telling objective indicator undermining the appellant’s account.

(b)Similarly, if the appellant’s account was correct, his royalty return for the  relevant  period  should  have  recorded  the  quantity  of  pounamu mined.      It  did  not.      The  jury  was  entitled  to  reject  the  appellant’s explanation for this, which was that he did not understand the form. The form was straightforward and the  appellant was an experienced businessman.        The  fact  that  royalties  were  not  payable  until  the pounamu was sold was irrelevant to the reporting obligation.   Again, we  consider  this  to  be  a  telling  objective  indicator  undermining  the appellant’s account.

(c)       Mr  Boustridge  is  well  experienced  and  highly  knowledgeable  in relation to West Coast pounamu.   This includes knowledge as to the sources  of  pounamu. In  addition,  he  has  first  hand  experience  of prospecting and mining in the area of the Big Bay mining licence.  On the  basis  of   that   expertise,   he   identified   the   appellant’s   upland snowflake  as  having  come  from  the  Cascade  Plateau  and  not  from Big Bay.  Mr Withnall was very critical of Mr Boustridge, describing him  in  submissions  as  “an  obviously  partisan,  egotistical  and  self- deluded witness”.   But Mr Withnall had the opportunity to, and did,

cross-examine Mr Boustridge at length on issues  going to his credit and put his criticisms of Mr Boustridge fully to the jury.   The Judge reminded the jury of these criticisms in his instructions  to  them.   If the jury concluded that the criticisms did not affect Mr Boustridge’s credibility,   as   they   were   entitled   to   do,   his   evidence   again significantly undermined the appellant’s account.

(d)The 1988 photograph of the  Big Bay area did not show a  pounamu boulder  at  the  location  where  the  appellant  said  he  found  and  later mined it.  Mr Withnall said that the photograph did not have sufficient resolution  to  show  a  boulder  of  the  relevant  size,  and  that  in  any event,  the  boulder  was  screened  by  vegetation  and  obscured  by  the shadow   of   a   larger   adjoining   boulder.           However,   the   boulder described by the appellant was a large one.  He said it was about two and  a  half  metres  wide,  three  to  four  metres  long  and  stood  about shoulder  height.           He  estimated  that  it  weighed  around  20  tonnes. Given   its   size,   the   jury   was   entitled   to   reject   the   appellant’s explanation that the boulder was covered by vegetation and so could not  be  observed.   Further,  the  place  where  the  boulder  was  said  to have  been  located  was  close  to  where  others  had  worked  and  was within a hundred metres or so of a bulldozer track.  That, and its close proximity to the larger  boulder,  make  it  unlikely that  it  would  have been overlooked by Mr Boustridge.

(e)       It   is   inherently   improbable   that   the   appellant   would   have   left Mr Bradford on his own in an isolated place for a lengthy period to mine a large quantity of valuable pounamu, especially as Mr Bradford was  young  and  cannot  have  had  much  experience  of  this  type  of mining.           There  was  no  dispute  that  it  was  at  least  desirable  that mining operations of this type be carried out by two or more people working together.

(f)       The  appellant’s  contention  that  he  transported  upland  snowflake mined from Big Bay in stages from storage sites at Big Bay to the old

Gorge Creek airstrip, then to various sites on the Cascade Plateau and from those sites to the road head at Martyr’s Homestead is inherently improbable.  If  the appellant was moving the pounamu from Big Bay

to  the  road  head  at  Martyr  Homestead  in  stages  it  is  difficult  to understand  why  he  would  have  stored  it  on  the  Cascade  Plateau. Big Bay   and   the   Gorge   Creek   airstrip are   to   the   south   of Martyr Homestead  whereas  the  Cascade  Plateau  is  to  the  north.   In other    words,      the          Cascade     Plateau        was      not      en           route  to Martyr Homestead  (nor  was  it  en  route  to  the  appellant’s  farm  at Makarora).     Consequently,  in  order  to  move  pounamu  mined  at Big Bay  from  the  Cascade  Plateau  to  the  Martyr  Homestead,  the appellant would have had to retrace part of his original journey, albeit (perhaps)  indirectly.  Further,  he  would  have  had  to  handle  the pounamu  on  multiple  occasions.  The  appellant  claimed  that  he  had originally dropped pounamu on the Cascade Plateau as a result of bad weather, and had later used it for storage as a matter of convenience.

It  is  unclear  why  the  Cascade  Plateau  would  be  a  more  convenient storage  site  than  other  options  if  the  pounamu  was  in  fact  mined  at Big Bay.

(g)       The  jury  was  entitled  to  discount  Professor  Cooper’s  discovery  of upland snowflake fragments and old mining implements at the site at Big Bay, given that he was taken to the site by the appellant.  Despite the  geological  possibilities,  there  was  no  independent  evidence  that upland snowflake had ever been found at Big Bay.

[22]     Having  eliminated  as  a  reasonable  possibility  that  the  appellant’s  upland snowflake  came  from  Big  Bay,  the  jury  had  to  be  satisfied  beyond  a  reasonable doubt that it came from the Cascade Plateau.

[23]     The  undisputed  evidence  was  that  upland  snowflake  occurred  in  its  natural state on the Cascade Plateau; that pounamu boulders seen on the Cascade Plateau in

1998 had disappeared by 2004; that the appellant had stored mined upland snowflake

on  the  Cascade  Plateau  at  storage  sites  close  to  MS1  and  MS2;  and  that  he  had

removed  mined  upland  snowflake  from  the  Cascade  Plateau  by  helicopter.    In addition,   Dr   Coulsen’s   evidence   established   that   paint   from   pounamu   in   the appellant’s possession or supplied by him and paint on pounamu samples from MS1 came  from  the  same  source  of  paint,  or  from  different  sources  of  the  same  paint. Further, M-section steel was found at both the appellant’s storage site E1 and at the mining  site  MS1.  Mr  Boustridge  identified  the  upland  snowflake  as  having  come from the Cascade Plateau, and the appellant made inculpatory statements during the intercepted telephone conversations with Mr Saxton.   In the light of this evidence, and  absent  any  explanation  that  the  appellant’s  upland  snowflake  had  come  from somewhere else, the jury would have been entitled to conclude that it came from the Cascade Plateau.   That is, this evidence  was sufficient to allow a jury to draw the inference  that  the  appellant’s  upland  snowflake  came  from  the  Cascade  Plateau. Indeed, in the circumstances just postulated, we consider that the inference would be irresistible.

[24]     As  it  happened,  the  appellant  did  contend  that  the  pounamu  came  from somewhere else, namely Big Bay.   If the jury rejected that contention, as it did, it was entitled to conclude on the basis of the other evidence that the pounamu came from  the  Cascade Plateau.     The  rejection  of  the  appellant’s  account  could  not,  of course, lead inevitably to the conclusion that he was guilty.   The Crown’s evidence remained to be assessed against the standard of proof which it was obliged to meet. But we consider that the evidence advanced by the Crown was sufficient to establish beyond a reasonable doubt that the appellant was guilty of the offences charged.

[25]     Accordingly, we reject this ground of appeal.

Fresh evidence

[26]     In  R  v  Bain  [2004] 1 NZLR 638 at [22] – [27] this Court identified the approach to be adopted where it is alleged that there is fresh evidence. That approach was confirmed in R v Haig (2006) 22 CRNZ 814 at [52] – [61], and the Privy  Council  applied  it  in  R  v  Bain  (2007)  CRNZ  71.  In  the  latter  case Lord Bingham said:

[103]   A  substantial  miscarriage  of  justice  will  actually  occur  if  fresh, admissible  and  apparently  credible  evidence  is  admitted  which  the  jury convicting a defendant had no opportunity to consider but which might have led  it,  acting  reasonably,  to  reach  a  different  verdict  if  it  had  had  the opportunity  to  consider  it.  …  It  is   …  the  duty  of  the  criminal  appellate courts to seek to identify and rectify convictions which may be unjust.  That result  will  occur  where  a  defendant  is  convicted  and  further  post-trial evidence raises a reasonable doubt  whether  he  would  or should  have  been convicted had that evidence been before the jury.

[27]     Two  features  of  the  approach  set  out  in  these  authorities  are  of  particular importance in the present case:

(a)       First, it is not always necessary that the evidence be fresh before the Court will consider it.   If the evidence is strong and demonstrates a real risk of  a miscarriage of justice, the requirement  that  it  be  fresh will be of less importance (see this Court’s decision in Bain at [22]).

(b)Second,  while  this  Court  acts  as  a  filter  through  which  the  further evidence   must   pass,   it   is   not   the   ultimate   arbiter   of   guilt. Accordingly,   if   there   is   apparently  cogent   and   admissible   fresh evidence  that  might  have  caused  a  reasonable  jury  to  entertain  a reasonable doubt about guilt, the conviction must be quashed (see this Court’s decision in Bain at [25]).

[28]     In order to assess the fresh evidence arguments, we have read and considered the additional evidence submitted by the appellant, and the additional evidence that the Crown has sought leave to introduce if the appellant is granted leave.

[29]     Mr Withnall argued that there was fresh evidence relating to: (a)       A pounamu boulder known as the Brown Rock.

(b)       MS3.

(c)       Mining by others on the Cascade Plateau.

(d)       A pounamu boulder known as the Sausage.

(e)       MS1 and 2.

(f)       The source of upland snowflake.

[30]     Again, we address each aspect in turn.  Our approach will be to consider each piece of evidence to assess whether it meets the fresh evidence test and to assess its possible impact.  Then we propose to stand back and consider the proposed evidence overall  to  assess  whether,  irrespective  of  whether  it  is  fresh,  it  could  create  a reasonable doubt.

The Brown Rock

[31]         Mr  Withnall  said  that  the  Crown  led  evidence  about  a  pounamu  boulder known as the Brown Rock, which was adjacent to MS3.   The evidence was that it had been mined and the cut surface painted with brown paint.  Mr Withnall said that the only basis on which this evidence could have been admissible was if it was being alleged  that  the  appellant  was  in  some  way  connected  with  the  mining  of  the

Brown Rock.

[32]     The new evidence  was a photograph showing another  person,  Mr  Landaus, mining the Brown Rock, with Mr Saxton’s helicopter in the background lifting cut pounamu from the site.  This was taken in January 1995.  Mr Withnall said that this exonerated the appellant from any involvement with the mining of the Brown Rock.

[33]     Mr Bates said that it was never part of the Crown’s case that the  appellant was   involved   in   the   mining   of   the   Brown   Rock.  Evidence   relating   to   the Brown Rock was led simply as an example of the mining of upland snowflake on the Cascade Plateau  and  the  use  of  brown  paint  to  camouflage  it.   Reference  was  not made to it in the Crown’s closing as one of the strands of evidence upon which the jury was invited to rely.

[34]     Moreover,  Mr  Bates  said,  Mr  Withnall  cross-examined  one  of  the  Crown witnesses, Mr Radomski, on this topic.   Mr Radomski agreed that Mr Landaus had been responsible for the mining of the Brown Rock.  Mr Withnall also referred to a

1995  photograph  of  Messrs  Landaus  and  Saxton  at  Brown  Rock  when  cross- examining  Detective  Sergeant  Roberts.  The  particular  photograph  Mr Withnall seeks to adduce was, Mr Bates said, readily discoverable by the  appellant  prior  to trial.   It was in a booklet of photographs, booklet “K”, which was available to the appellant’s counsel at trial, although it was not produced in evidence.

[35]     We agree that the photograph is not fresh evidence.  We consider that it was discoverable prior to trial.  We note that the appellant’s solicitor, Mr Marks, said in

his  affidavit  that  the  defence  obtained  a  copy  of  booklet  “K”  from  Mr  Saxton’s daughter,  Lisa  Saxton,  and  used  it  in  the  cross-examination  of  Detective  Sergeant Roberts, but did not examine it beyond that.  We do not understand why counsel did not take the opportunity to examine its contents given that the booklet was available and had at least some relevant material in it.  Further, we consider that the proposed use  of  the  photograph  would  add  little  or  nothing  on  any  retrial.   This  is  because Mr Withnall cross-examined on the basis that Messrs Landaus and Saxton had mined the Brown Rock and the Crown accepted that (in the sense that it did not allege that the appellant had been involved in its mining).  Mr Withnall said in closing:

[The] brown rock you’ll remember had already been cut in 1998.  Well, lots

of  people  knew  about  [the]  brown  rock  –  and  we’ve  seen  photographs  of them  sitting  on  it.   We’ve  had  evidence  from  Mr  Climo  of  having  seen  a photograph, which now can’t be obtained, of Ken Landaus sawing on that rock.  If Ken Landaus knew about the Landaus stone – and there’s no doubt about that – at one end of the ridge and he knew about the brown rock at the other end of the ridge, and everything else is in between, do you really think

he didn’t know what was in the middle?

….

The brown rock.  Well, I’ve already dealt with that.  That’s a red herring too, because,  again,  we  know  that  was  cut  in  1998  and  we  know  that  Ken Landaus,  who  has  been  convicted  for  unlawfully  taking  nephrite  jade greenstone  from  the  Cascade  Plateau,  knew  about  that  rock  because  he’d been photographed on it some years before when it wasn’t cut.

[36] Further, the Crown did not allege that the appellant was solely responsible for the removal of upland snowflake from the Cascade Plateau. The jury would have been well aware of this, both from the references to Mr Landaus and others in the course of the trial and from the intercepted telephone conversations. We return to this aspect at [44] below.

[37]     A further issue arises at this point.  The evidence concerning the Brown Rock may  be  described  as  “evidence  of  colour”,  that  is,  background  or  scene-setting evidence. Such  evidence  is,  perhaps  increasingly,  being  led  by  the  Crown  in criminal cases.   In some (perhaps many) cases, such evidence will be of peripheral relevance,  yet  may be,  to  some  extent  at  least,  prejudicial.   We  will  consider  this issue further when we undertake an overall assessment at the end of this section of the judgment.

MS3

[38]     In the notice of appeal it was alleged that new evidence had become available that the pounamu boulder at MS3 had been  mined by a named individual and one other person.   However, that evidence was not in fact presented, and a new ground was advanced in relation to MS3.

[39]     It is now said that there is new evidence that the pounamu boulder at MS3 is quite different in its makeup from other examples of upland snowflake, in particular those found in the possession of the appellant.  This is because the boulder contained deep veins of asbestos and had  aggregations of brilliant green  chromium diopside. Mr Withnall says that this evidence establishes that that none of the pounamu seized from the appellant’s farm, or sold by him, had any connection to this site.

[40]     This evidence is said to be new because Professor Cooper did not visit MS3

or  analyse  samples  taken  from  it  prior  to  the  appellant’s  trial.   This  was  not  done until later, in preparation for the Saxton trial.  Although Professor Cooper was taken

to the Cascade Plateau by helicopter in February 2005 (prior to the Hutton trial) and did land at MS1 and other relevant sites, he did not land at MS3.

[41]     In response Mr Bates made two points.  First, he said that it was never part of the Crown case that the appellant was responsible for the mining of the boulder at MS3.   MS3 was relevant because it was the only example of an upland snowflake boulder remaining in situ on the Cascade Plateau and Professor Weaver had analysed

a sample from it for the purposes of his evidence.  Second, he submitted that the use that the Crown proposed to make of the boulder at MS3 would have been apparent to

the defence by February 2005.  Professor Weaver had analysed a sample from it and had concluded that the green material in it was similar to the green material in other samples of pounamu found at sites on the Cascade Plateau.  There was photographic evidence that the defence team had passed very close to MS3 during their helicopter visit to the Cascade  Plateau.   In  light  of  these  factors,  it  was  inexplicable  that  the defence team had chosen not to visit the site.   The result was, Mr Bates submitted, that the evidence could not be said to be new.   In any event Mr Bates said, the new evidence confirmed Professor Weaver’s view.

[42]     We  think  it  unlikely  that  this  evidence  qualifies  as  fresh.    We  agree  with Mr Bates that the importance of the site would or should have been apparent to the defence  team  prior  to  trial.           They  chose  not  to  visit  it,  preferring  to  devote  their efforts elsewhere.   That may well be understandable.   It  is  the  type  of  choice  that must typically be made in trial preparation.  But that does not mean that if, following conviction,  other  avenues  are  pursued,   anything  of  possible  relevance  that  is discovered must be treated as fresh evidence.

[43]     More  importantly,  we  consider  that  the  new  evidence  does  not  assist  the appellant in meeting the case against him.   Mr Withnall said that it showed that the appellant was not involved in the mining of the boulder at MS3.   But it was never part of the Crown case that he was.

Mining by others on the Cascade Plateau

[44]     Mr Withnall submitted that at trial there was no  evidence of mining on the Cascade Plateau by anyone other than Mr Landaus.  The Saxtons had been charged, but depositions had not taken place.   There was no disclosure of material from the Saxton file and they were represented at that time by different solicitors and counsel. The consequence is, Mr Withnall said, that the present case was presented to the jury

on the basis that all mining on the Cascade Plateau, apart from that carried out by

Mr Landaus, had been carried out by the appellant.

[45]     However, Mr Withnall said, the evidence at the Saxton trial was that both the

Saxtons   and   at   least   one   other,   Mr   Climo,   had   mined   pounamu   on   the

Cascade Plateau.  Further, Professor Weaver’s evidence at the Saxtons’ trial was that upland  snowflake  found  in  their  possession  was  geochemically  consistent  with having come from MS1 and MS2.   Mr Withnall submitted that this evidence might have cast doubt on the Crown’s case against the appellant.

[46]     This   submission   is   untenable.     First,   the   appellant   accepted   in   cross- examination that Mr Saxton was a “good mate”.   Immediately following the police search of his farm on 4 May 2004, the appellant contacted Mr Saxton by telephone.

It is clear from the tenor of their discussions in the intercepted telephone calls that the appellant well understood that Mr Saxton was being investigated by the police in relation  to  the  theft  of  pounamu  from  the  Cascade  Plateau.  Further,  Mr  Saxton offered to assist the appellant’s defence, in part by arranging witnesses.   One of the potential witnesses identified in their discussions was Mr Climo.

[47]     Second,   David   and   Morgan   Saxton   were   arrested   and   charged   on

12 October 2004.  It is inconceivable that the appellant was not aware of this.  Even

if  he  was  not,  he  must  have  known  prior  to  trial.    Mr Bates  said  that  the  Crown opened its case at depositions on the basis that the appellant was involved with the Saxtons  in  mining  pounamu  on  the  Cascade Plateau.  Further,  in  July  2005  the Crown applied for an adjournment of the trial (which was to start on 8 August 2005). The  basis  of  the  application  is  recorded  in  Judge  Macdonald’s  oral  judgment  of

21 July 2005 as follows:

[1]      This is an application by the Crown to adjourn a trial that has been scheduled  to  start  on  8  August  2005.   The  trial  is  expected  to  take  three weeks.  The primary basis of the application is that there are other accused, namely the Saxtons, who face similar charges, and who are alleged to have been involved in similar offending.  In their case the preliminary hearing has yet to be held. …

[2]      In the event of a committal for trial, and Mr Bates seems confident that  there  will  be  a  committal,  the  Crown  would  then  apply  to  join  all accused and bring them together in a single trial. ...

The  appellant  opposed  the  Crown’s  application,  successfully.   But  he  cannot  have been in any doubt prior to trial that the Crown considered that others were involved

in mining pounamu on the Cascade Plateau.

[48]     Finally, Mr Climo gave evidence for the appellant at trial.  In his evidence he described his lifelong involvement with pounamu, his mining activities at Big Bay under  contract  with  the  appellant,  his  role  within  Te  Runanga  o  Makaawhio  in relation to pounamu and his work in making an inventory of the pounamu resources

on the Cascade Plateau and elsewhere by taking GPS readings.  There was no reason why the appellant could not have found out about Mr Climo’s mining activities on the Cascade Plateau if he had regarded that as important.

[49]     Accordingly we do not accept that there is fresh evidence in this respect.

[50]     Quite  apart  from  that,  the  additional  evidence  that  has  become  available  in relation to this aspect of the case as a consequence of the Saxtons’ trial is, to some extent  at  least,  unhelpful  to  the  appellant.                Mr  Cyril  Cain  gave  evidence  for  the Saxtons’ at their trial.   He said that he had a customary right to mine pounamu and had transferred that to Mr Saxton.   Mr Saxton had mined pounamu on the Cascade Plateau in furtherance of that right.  He said in his evidence that Messrs Saxton and Hutton had found a great deal of pounamu – “heaps and heaps of it … everywhere”, although he did not specifically link the appellant to the Saxtons’ activities on the Cascade  Plateau.           Further,  Mr  Cain’s  evidence  provided  some  support  for  the evidence of Mr Boustridge and Professor Weaver, in the sense that he confirmed that pounamu found on the Saxton properties which they had identified as having come from the Cascade Plateau did indeed come from there.

M-section steel

[51]     Part  of  the  Crown  case  against  the  appellant  was  that  some  lengths  of

M-section  steel  were  found  at  one  of  his  storage  sites,  E1,  and  at  MS1.    No

M-section  steel  was  found  at  the  appellant’s  farm,  however,  although  more  was found at another site on the Cascade Plateau.   Mr Withnall submitted that, as there was  no  evidence  at  trial  that  anyone  else  had  M-section  steel,  the  jury  was  being asked to infer that the appellant carried all mining operations on the Cascade Plateau (other than those of Mr Landaus).  Mr Withnall says that there is now relevant new evidence, in that at the Saxtons’ trial the police produced a photograph, taken at a Saxton property, of an elevated water tank resting on a bed of M-steel sections.

[52] As to freshness, Mr Bates submitted that the photo at issue was available in booklet “K” (see [34] above). Mr Withnall said that this booklet was available to the defence for only a short time towards the end of the Crown case, so that counsel did not examine its contents in their entirety. (We referred to Mr Marks’ affidavit evidence as to this at [35] above.)

[53]     In  reality,  this  argument  is  simply  a  variation  of  the  previous  one.    The appellant was well aware that others were alleged to have been involved in mining

on the Cascade Plateau, including Mr Saxton to whom he was very close.  We do not see why he could not have obtained information about Mr Saxton’s use of M-section steel prior to trial if he thought it important.  In any event, the fact that a water tower

on  Mr Saxton’s  property contained  M-section  steel,  while  relevant,  is  not  a  strong piece  of  evidence  in  the  appellant’s  favour,  particularly  in  light  of  the  fact  that

Dr Coulsen’s  evidence  now  links  paint  from  the  M-section  steel  found  at  MS1  to paint from the M-section steel found at E1.

The Sausage

[54]     There  is  a  pounamu  boulder  known  as  “The  Sausage”  at  a  place  called Teer Creek, which is adjacent to the Cascade Plateau.  A Crown witness, Mr Wilson, gave evidence that while he was tramping on the Cascade  Plateau  in  2003  he  had seen a black helicopter rise from a creek in the distance.  He went to investigate and found a tarpaulin with manuka scrub on it, some black plastic drums, some pipes and

a pounamu boulder which had been cut.  He said that the helicopter had come from this site.   Photographs of exhibits taken from this site were produced at trial by the police.  Mr Withnall said that the only basis on which this could have been done was that the appellant was in some way involved with mining at this location.

[55]     Mr Withnall said that the defence case was that the appellant had nothing to

do with mining at this site.  At the Saxton trial evidence was given which supported this contention.   That evidence was that mining of the sausage had been carried by certain named people in 1991 or 1992.  Mr Withnall said that this evidence showed that  the  circumstantial  links  to  other  mining  sites  do  not  point  inevitably  to  the appellant.

[56]     In response, Mr Bates said that the Crown did not allege to the jury that the appellant had been involved in mining the sausage or in any activity at Teer Creek. The  relevance  of  the  evidence  was  that  it  showed  how  this  type  of  operation  was conducted.   He  said  that  the  evidence  at  trial  linked  the  mining at  this  location  to Mr Saxton.   Senior Constable Grubb gave evidence that he had found a rock in the vicinity of the sausage with the words “Toney and Saxton’s claim” chiselled into it. Mr Withnall cross-examined Senior Constable Grubb about this, suggesting that the chiselled words were unclear  and that the word “Toney”  could in fact be  “Jones”. The witness agreed with this proposition, and said that the only clear word was the word “Saxton”.  Another Crown witness, Mr Winfield, gave evidence that a mining licence application covering this area had been made by Messrs Saxton and Jones in December 1986.

[57] Given that the Crown did not allege that the appellant had been involved in pounamu mining in this locality, it is difficult to see that the evidence about Teer Creek had any particular relevance to the issues in the appellant’s trial. It seems essentially to have been evidence of colour. As such, it may have been better had it not been led. (We return to this aspect at [95] below.) But given that there was no evidence to link the activity at this site to the appellant, and no allegation from the Crown that he was linked to it (as Mr Withnall appears to have recognised

in  his  closing address  to  the  jury),  we  do  not  see  that  any issue  of  fresh  evidence arises.

MS1 and 2

[58]     Mr  Bevan  Climo,  who  gave  evidence  for  the  appellant  at  trial,  filed  an affidavit  (his  second)  in  which  he  described  a  trip  by  helicopter  to  the  Cascade Plateau on 24 September 2006.  Mr David Saxton flew the helicopter.  Also on board were  Mr Withnall  and  Mr  Cain.   (This  trip  occurred  after  the  appellant’s  trial  but before the Saxtons’ trial.)

[59]     They visited the site referred to as MS1, where they found numerous small pieces of a very pale green pounamu.  These were sitting on the ground in a way that

made Mr Climo think that they had been placed there deliberately.  There was a short piece of black pipe, the end of which had been dug into the ground.  It led nowhere.

[60]     The  party  then  looked  for  MS2,  using  the  GPS  co-ordinates  given  by Senior Constable Grubb at the appellant’s trial.  They were unable to locate MS2 at those co-ordinates, or anywhere nearby.

[61]     Mr Climo went on to say that he had carried  out  a  survey of  the  pounamu resources in the rohe of the Makaawhio people  and had  plotted  the  position  of  all known pounamu throughout South Westland by GPS.  This was in around 2000 and included the Cascade Plateau.  He had no record of any pounamu at the site of MS1

or nearby at that time.

[62]     Following this visit, a private investigator, Mr Robinson, was engaged.   He made two affidavits.   He said that in December 2006 he was taken by helicopter to the  Cascade  Plateau.   He  went  first  to  the  sites  of  the  Landaus  Stone  and  the Brown Rock  and  then  to  MS1.   From  there  he  went  to  the  co-ordinates  given  by Constable Grubb for the site of MS2.  He was unable to find anything resembling a mining site at this location.  However, having searched in the general area, he found

a pipe which led down to a creek and then away from it.  That appeared to have been

in place for  a long time.   He also found  what appeared to  be  a  mining site,  about

50 metres away from the co-ordinates given by Constable Grubb.  There was debris

of various sorts at the site.

[63]     Mr Withnall said that this evidence undermined the integrity and reliability of the evidence given in relation to MS1 and MS2.  As we understood it, the suggestion

in relation to MS1 was that it had been “salted” and was not a mining site at all.  The suggestion in relation to MS2 was that there was so much confusion concerning its location that its existence was in doubt.

[64]     In  addressing  these  contentions,  Mr  Bates  said  that  Mr  Climo  had  given evidence for the defence at the appellant’s trial of taking GPS readings of pounamu boulders in about 2000 and of recording the GPS location of the Brown Rock.   He was unwilling to co-operate fully in terms of providing further information about the

survey  as,  he  said,  the  Runanga  had  decided  that  such  information  should  not  be released.      Mr  Bates  noted  that  no  explanation  had  been  given  as  to  why  this information   can   now   be   released.    Against   this   background,   Mr   Bates   said, Mr Climo’s evidence that he did not record a pounamu boulder at the site of MS1 when he undertook his survey in 2000 was not “fresh” evidence.  We agree.

[65]     Mr  Bates  also  pointed  out  that  Mr  Climo’s  visit  to  the  Cascade  Plateau  in September 2006 had taken place some 14 months after the visit by Constable Grubb and others.   He submitted that evidence of “salting” of MS1 based on observations

so long after the original inspections did not undermine the integrity or reliability of the evidence in relation to those original inspections.  This was especially so in light

of  the  fact  that  the  appellant,  Professor  Cooper  and  Mr  Withnall  visited  MS1  by helicopter in February 2005.   The effect of the appellant’s evidence at trial was to confirm Constable Grubb’s evidence concerning the existence of MS1.

[66]     As to the location of MS2, Mr Bates accepted that the co-ordinates for that site  had  not  been  taken  by  GPS  but  from  a  map.   He  said,  however,  that  nothing material arose from this.  We agree.

[67]     MS1 and MS2 were close together, so close that the defence in the Saxton trial argued that there was really only one site.  Judge MacAskill acknowledged that possibility, but said that it made no difference.   We think that is so  in  the  present case.  What was important was that there was evidence of mining at MS1/MS2 and that there was evidence linking mining at those sites to the appellant, including the evidence that the appellant stored pounamu at sites in close proximity to MS1/MS2. The  points  raised  by  Mr  Withnall  do  not  cast  doubt  on  the  substance  of  the  case against the appellant in this respect.

Source of upland snowflake - scientific evidence

[68]     Mr   Withnall   argued   that   further   scientific   evidence   became   available following the Saxton trial which contradicts the evidence at the appellant’s trial “that upland snowflake does and can only come from the Cascade Plateau”.

[69]     The  key  element  of  this  new  evidence,  Mr  Withnall  said,  was  that  when

Professor Weaver analysed pounamu seized from the Saxtons, six of the 13 samples

of  upland  snowflake  analysed  did  not  match  any  of  the  control  samples  from  the three mining sites on the Cascade Plateau.   These six  samples could, Mr  Withnall said,  have  come  from  Big  Bay.  This,  together  with  the  evidence  of  the  unique characteristics  of  the  pounamu  rock  at  MS3  (the  asbestos  veins  and  the  brilliant green  chromium  diopside)  and  the  inadequacy  of  the  number  of  control  samples available  to  Professor  Weaver,  undermined  Professor  Weaver’s  evidence  at  the appellant’s trial.

[70]     In    his    submissions     Mr    Withnall    undertook   a    lengthy    analysis    of Professor Weaver’s approach,  against the backdrop of the  criticisms  of  it  made  by Professor Cooper.   He said that Professor Weaver had deliberately manipulated his choice of diagnostic elements for the purpose of comparing the control samples with the samples collected from the appellant’s pounamu so as to reach the desired result.

He said that Professor Weaver had made contradictory and inaccurate statements in certain   respects   and   that   his   evidence   lacked   “impartiality,   objectivity   and credibility”.   He described him as having adopted “a partisan, advocate role”.

[71]     The  criticisms  made  by  Mr  Withnall  on  the  basis  of  Professor  Cooper’s additional affidavits largely repeat the criticisms that were put to Professor Weaver

at the appellant’s trial and again at the Saxtons’ trial.   They seem to flow from two very different approaches to what might be described as the philosophy of science on the part of the two professors.

[72]     Further, it is not correct for Mr Withnall to characterise Professor Weaver’s evidence as being that upland snowflake could only come from the Cascade Plateau.

He acknowledged the possibility that it could be found at Big Bay.   The important issue was the source of the appellant’s upland snowflake.

[73]     We do not consider that the further evidence to which Mr Withnall referred would have added to the force of the criticisms of Professor Weaver’s evidence that

he   made   at   trial.     The   defence   subjected   Professor   Weaver’s   views   to   a comprehensive   and   sustained   challenge,   arguing   strongly   that   he   had   used

insufficient   control   samples,   that   his   methodology   was   wrong   and   that   his conclusions  could  not  be  supported.  The  “new”  evidence  is  simply  more  of  the same.  It does not advance the position from the jury’s perspective.

[74]     We do not consider that the jury would have been persuaded on the basis of the  additional  material  that  there  was  a  reasonable  possibility  that  the  appellant’s pounamu came from Big Bay.  The additional evidence does not affect the strands of evidence  identified  at  [21]  above,  which  fully  justify  the  jury’s  rejection  of  the appellant’s claim that the pounamu came from Big Bay.   As we have already said, once that possibility was dismissed, the jury was entitled, in the light of the evidence overall,   to   draw   the   inference   that   the   appellant’s   pounamu   came   from   the Cascade Plateau.

[75]     In this connection, we note that in his closing address to the jury Mr Bates was critical of Professor Cooper’s evidence, in particular his contention that it was established   that     upland           snowflake   came     from           Big      Bay.    He     criticised Professor Cooper  not  on  the  basis  of  what  Professor  Weaver  said,  but  because  he said it was wrong for Professor Cooper to have reached this conclusion on the basis simply of pounamu chips found at a place to which he was taken by the appellant. (This is an aspect to which we will return below.)   The important point for present purposes  is  that  Mr  Bates  did  not  place  any  great  weight  on  Professor  Weaver’s evidence  in  putting  to  the  jury  that  the  evidence  established  that  the  appellant’s upland snowflake came from Cascade Plateau.  Rather, he relied on the other strands

a  miscarriage  of  justice  occurred  as  a  result.        First,  in  closing  for  the  defence Mr Withnall  explored  the  differences  between  the  experts  fully,  and  was  strongly critical  of  Professor  Weaver.  The  jury  cannot  have  been  in  any  doubt  as  to  the defence  contentions  in  this  respect.   Further,  and  more  importantly,  ultimately  the scientific evidence could not be decisive in this case.   Both Professor Weaver  and Professor Cooper agreed that upland snowflake could, geologically speaking, occur both  at  Big  Bay  and  on  the  Cascade  Plateau.        The  issue,  then,  was  where  the appellant’s upland snowflake had come from.  Putting the scientific evidence to one side, there was powerful evidence that the appellant’s claim that the pounamu came from Big Bay was false (and powerful evidence that the pounamu in fact came from

the Cascade Plateau).  The scientific evidence provided little assistance on this point, apart from Professor Cooper’s discovery of the fragments of upland snowflake and old mining utensils at Big Bay.  As to that, the jury may well have concluded that the site  was  salted,  or  that,  even  if  the  fragments  came  from  Big  Bay,  the  appellant’s pounamu came from the Cascade Plateau.

[146]   The  minority (Baragwanath  J)  takes  a  different  view,  for  reasons  which  he sets out in [147] to [157] below.

[147]   There are two questions:

(a)       Whether the directions as to the scientific evidence were adequate and no more help was required by the jury; if not

(b)      Whether there was a miscarriage.

[148]   The right to fair trial requires that the case be presented in such a way that a reasonable  jury  could  be  expected  to  understand  and  evaluate  it.   In  this  case  the competing geological evidence, given principally by Professor Weaver and Professor Cooper, was of formidable complexity.   While it cannot be adequately described in brief  reasons  for  dissent,  it  related  to  whether  the  Crown  case  or  the  defence  was supported by the mineralogical and geochemical evidence.  It took most of the three days of the hearing on appeal, together with subsequent analysis and reflection, for the  members  of  the  Court,  each  with  long  experience  of  complex  litigation,  to understand the science and its significance.  That despite the considerable assistance received   from   counsel’s   written   submissions   and   the   opportunity   during   oral argument to investigate and test the arguments.

[149]   The experience of such heavy cases as R v Jeffs CA114/77 28 April 1978 and

R v Taylor CA58/93 9 June 1993 has brought out the need to recognise that there are limits  to  the  ability  of  jurors  to  handle  the  most  complex  kinds  of  case,  at  least without proper assistance.   In the former this Court concluded its judgment with a recommendation  that  the  option  of  judge  alone  trial  be  considered,  either  at  the election  of  an  accused  person  or  by  special  order  of  the  Court.  Part  of  the

consequence was the enactment of ss 361B and 361C of the Crimes Act,  allowing the accused to apply for trial by judge alone.   In the latter case, tried before a judge alone, this Court concluded its judgment with the statement  that  there  would  have been  virtually  no  prospect  of  a  jury’s  being  able  to  comprehend  a  case  of  such complexity.

[150]   The  Australian  experience  has  been  similar.    R  v  Velevski  (cited  at  [143] above) refers to the problem in R  v Chamberlain (1984) 153 CLR 521, the facts of which are closer to the present case. There (at 558) Gibbs CJ and Mason J, his successor as Chief Justice, endorsed the opinion of Jenkinson J in the Court of Appeal about the competing evidence of the prosecution and defence scientists:

Each of them was giving his opinion on matters of science within disciplines

of which each was a master, and at a level of difficulty and sophistication above  that  at  which  a  juror,  or  a  judge,  might  by  reasoning  from  general scientific   knowledge   subject   the   opinions   to   wholly   effective   critical evaluation.   The  reasoning  by  which  other  expert  witnesses  criticised  the conclusions of the [defence experts], as well as the reasoning by which the latter   two   witnesses   supported   those   conclusions   and   criticised   the conclusions of the others, were all matter for the jury’s evaluation.   But in my  opinion  no  juror  could  reasonably  have  failed  to  acknowledge  that, reason  as  he  might,  he  was  not  in  a  position  to  assure  himself  of  the correctness of a conclusion against the opinions of the two professors to the degree which would eliminate reasonable doubt as to that conclusion.

[151]   Although  the  formulation  was  not  endorsed  by  other   members   of   the Chamberlain  Court,  it  faces  up  to  the  problem  stated  by  Nobles  and  Schiff Understanding Miscarriages of Justice (Oxford 2000) at 192:

In the Birmingham Six case Bridge J’s summing up made no pretence that the jury,

or he, would be able to pronounce scientific judgment on the dispute between the prosecution and defence scientists.  He said:

The only way you can resolve these differences is by your impression of the witnesses.

[152]   This  Court’s  conclusion  after  an  exhaustive  three-day hearing  is  that  if  the expert evidence stood alone it would not justify conviction.  In that respect this case

is  similar  to  that  of  the  Chief  Justice  and  Mason  J  in  Chamberlain.   That  case  is distinguishable because here other evidence would justify conviction, provided the trial was fair.  But the question remains whether there is real risk that the presence of

the complex scientific evidence, with no clear direction concerning it, distracted the jury from their task of analysing the other evidence in the case.   So the remaining issues are whether the judge’s failure to grapple with the science and to give the jury

a warning were:

(a)       Wrong; and

(b)       Such as to entail miscarriage.

[153]   As  to  (a),  New  Zealand  law  should  endorse  the  approach  of  Gibbs  CJ  and Mason J.   A judge, expert in handling evidence even though  layman in matters of science, has both the capacity (with counsel’s help) and the obligation to ensure that insofar as the science is likely to be beyond the comprehension of a  common jury there  is  a  true  analysis  of  it  for  them.     The  judge  can  take  whatever  steps  are necessary to  be  able  to  do  so:  in  Kirin-Amgen  Inc  v  Hoechst  Marion  Roussel  Ltd

[2004] UKHL 46 the Law Lords underwent a two day seminar in Oxford to equip themselves with the science needed to understand forthcoming argument in a recent patents case.

[154]   By  not  grappling  with  it,  the  Judge  employed  Lord  Bridge’s  approach  of leaving the jury to assess unaided issues they could not be expected to master.  To do

so is wrong in principle.

[155]   As  to  (b),  it  is  impossible  to  avoid  a  conclusion  that  the  trial  process  was unfair.  Certainly, after careful analysis, this Court has concluded both: (1) that there was  evidence  to  justify  conviction  without  reference  to  the  expert  geological evidence, and (2) that the geological evidence was not enough of itself to enable the Crown to carry the day.   But it is not clear that the jury reasoned in the same way. Unlike this Court, the jury was not in a position to understand the scientific evidence properly;  nor  did  they  receive  a  direction  from  the  Judge  conveying  the  latter conclusion  to  them.   Yet  to  reach  their  verdict  they  must  have  wrestled  with  that evidence which they lacked the means to do effectively.

[156]   During the trial a  great deal of emphasis was placed on the science,  which was pervasive throughout the hearing.   It is not likely that the jury were able in the end simply to put it aside and reach their verdict on the other evidence as we have done.  Yet  that  is  what  application  of  the  Gibbs/Mason  direction  would  have required.          There  was  therefore  a  distinct  risk  that  they  reached  an  inaccurate assessment of it which influenced their ultimate decision.

[157]   The conclusion may be summarised:

(a)       The right to a fair trial is absolute;

(b)       To  achieve  it,  where  there  is  science  of  the  weight  in  this  case,  the

Gibbs/Mason direction should be given; (c)     That did not occur;

(d)While there was sufficient evidence to convict without the scientific evidence, the jury may well have seen the science as central;

(e)       Without  assistance  from  the  Judge  there  is  a  real  risk  that  the  jury misapprehended  the  evidence  and  that  their  appraisal  of  the  other evidence in the case was distorted;

(f)       There was accordingly a miscarriage of justice;

(g)       The  Crown  did  not  suggest  that  the  proviso  to  s  385(1)  of  the

Crimes Act could apply;

(h)       There should therefore be a new trial.

[158]   We turn now to the matters held over from the discussion of improper Crown conduct.  There are three - the unfounded attack on Professor Cooper, the reversal of the  onus  of  proof  and  the  need  for  a  common  sense  assessment  of  the  expert evidence.

[159]   As to the challenge to Professor Cooper, the Judge said:

[33]     There  was  some  criticism  raised  by  Mr  Bates  about  Professor Cooper.   He was  challenged  on this  and  Mr  Withnall  was  obviously quite upset  that  it  was  even  raised.          However,  the  general  proposition  put  to Professor  Cooper  is  correct  and  that  is  that  an  expert  witness  has  an overriding duty to assist the Court impartially on relevant matters within the expert’s  area  of  expertise  and  must  not  become  an  advocate  for  the  party engaging him or her.   Of course that was the Crown’s proposition to which Mr Withnall has responded.   You will recall the submissions in that regard.

…

[160]   The Judge, then, did not regard the Crown as having overstepped the mark.

He was in a much better position than we are to assess the attitude and demeanour of Professor  Cooper  and  whether  Mr  Bates’  criticism  of  him  was  justified  and  was expressed  appropriately.          It  is  clear  from  the  record  that  there  was  a  basis  for Mr Bates’ concern.  As we said above (at [116]), Professor Cooper made comments

in his report which justified Mr Bates pressing him on his understanding of the role

of an expert witness.

[161] As to the reversal of the onus of proof, it will be apparent from what we have said at [135] above that we consider that the Judge’s instructions on the burden and standard of proof were appropriate. Further, in relation to Mr Withnall’s submission that the effect of the Crown’s submission was that “The appellant is lying, therefore

he is guilty”, we note that the Judge also said:

[29]     I  want  to  say  something  about  lies.   Mr  Bates  suggested  in  his address to you that the accused had lied.   In particular this was in his video interview,  for  example  about  when  he  was  last  on  the  Cascade  Plateau. There may have been some other matters that  Mr Bates was relying upon. Can I just say this?   First, you have to decide whether an accused has told lies rather than just simply being mistaken.   The second thing is that if you are  satisfied  that  lies  have  been  told,  you  do  not  necessarily  jump  to  the conclusion that because he has told lies he is therefore guilty.  He is not on trial for telling lies and you will appreciate of course that people tell lies for all  sort  of  reasons.  They  might  be  under  pressure  for  some  reason. I suppose we have all done it, or most of us have, so it is important that you keep it in perspective.  Do not jump to the conclusion that he is guilty.  If you are satisfied he has told lies then that is a matter that you can properly take into account when assessing his credibility.  That is the possible significance but keep it in perspective.  Do not jump to the conclusion that he is guilty.  If you are satisfied he has told lies then that is a matter that you can properly take  into  account  when  assessing  his  credibility.        That  is  the  possible significance but keep it in perspective.

(Emphasis added.)

[162]   Accordingly, while we do not agree that Mr  Bates reversed the onus in his closing,  the  Judge’s  instructions  made  the  correct  position  clear  in  any  event. Further, the Judge noted Mr Withnall’s complaint in his summing up.  He said:

[52]     Mr Withnall started his address by reminding you that the defence bears no onus of proof and his initial complaint was that effectively what Mr Bates had done was to reverse the onus of proof.  Mr Withnall reminded you

of  your  essential  task.   You  had  to  ask  whether  the  Crown  had  proved beyond   reasonable   doubt   that   the   greenstone   in   question,   the   Upland

Snowflake, did not come from the accused’s mining licence at Big Bay, but instead came from the Cascade Plateau and after 28 October 1997.  He put to

you too that unless the Crown has persuaded you that there is no reasonable possibility  that  the  greenstone  came  from  Big  Bay,  then  you  must  have  a

reasonable doubt and you must acquit the accused.

[163]   In  these  circumstances  we  see  no  possibility  that  the  jury  might  have misunderstood the position.  Accordingly, we reject Mr Withnall’s submission.

[164]   Finally   in   relation   to   common   sense   and   expert   evidence,   the   Judge specifically advised the jury that he doubted that common sense would assist them much.  He said that they would have to analyse the evidence properly and reach their conclusions “in a proper and reasonable way” (at [64]).   Mr Withnall’s submission

on this point is also unsustainable.

Use of intercepted conversations

[165]   Mr Withnall said that the Judge’s instruction to the jury on the use to be made

of the intercepted conversations was inadequate.  The Judge said (at [63]):

Mr   Withnall   suggested   that   what   Mr   Saxton   said   on   the   intercepted communication was inadmissible.   It would be inadmissible insofar as what

he  was  actually  describing  but  as  far  as  the  actual  conversation  goes,  the
Crown is not relying on what he said, it is what the appellant said.  You need
to bear that in mind.

[166]   While, Mr Withnall said, the Judge had correctly stated the principle, he did not explain to the jury what he meant (by way of examples and such like).

[167]   We  accept  that  a  fuller  explanation  might  have  been  desirable,  but  do  not consider  that  there  is  any  risk  of  a  miscarriage  flowing  from  this  in  light  of  the limited use made by the Crown of the intercepted conversations.

Decision

[168]   In the result, we decline leave to admit the additional evidence and dismiss the appeal.

Postscript – expert evidence

[169]   As appears customary in criminal cases, none of the experts involved in this case was shown the Code of Conduct for expert witnesses in the High Court Rules, which expert witnesses in civil cases must accept (see r 330A and Schedule 4 of the High  Court  Rules).   As  this  Court  has  previously  noted,  the  High  Court  Rules dealing with expert witnesses do not apply in the criminal context (R v Seu CA81/05

8 December 2005 at [81]).   Nevertheless, the obligations of an expert witness in a criminal  case  do  not  differ  from  those  of  an  expert  witness  in  a  civil  case,  in  the sense that, in both contexts, the witness must not to be an advocate for any party but must assist the Court impartially on matters within his or her area of expertise.

[170]   This Court summarised the relevant principles in R v Carter (2005) 22 CRNZ

476 as follows:

[47]     The following principles are uncontroversial and apply in all cases where expert evidence is called:

(a)       an expert must state his or her qualifications when giving evidence;

(b)the facts, matters and assumptions on which opinions are expressed must be stated explicitly;

(c)       the reasons for opinions given must be stated explicitly;

(d)any  literature  or  other  material  used  or  relied  upon  to  support opinions must be referred to by the expert;

(e)       the expert must not give opinion evidence outside his or her area of expertise;

(f)       if  an  expert  witness  believes  that  his  or  her  evidence  might  be incomplete    or                  inaccurate        without   some    qualification,   that qualification must be stated;

(g)       an  expert  has an  overriding duty to  assist  the  Court  impartially  on relevant matters within the expert’s area of expertise; and

(h)      an expert is not an advocate for any party.

Those propositions reflect the truism that expert evidence must be based on reason   as   opposed   to   conclusions   incapable   of   being   tested   in   any meaningful  manner.   It  is  for  that  reason  that  underlying  assumptions  and reasons for opinions reached must be stated explicitly.

[171]   We consider it desirable that counsel refer expert witnesses in criminal cases

to this statement of principles and that witnesses should state at the outset of their evidence that they understand and accept them.

Solicitors:

Aspinall Joel, Dunedin for Appellant

Crown Law Office, Wellington