R v Maney Ca450/99

IN THE COURT OF APPEAL OF NEW ZEALAND

CA450/99
CA463/99

THE QUEEN

V

COLIN NEIL MANEY
AND
MARK WILLIAM HENRIKSEN

Hearing:	24 February 2000
Coram:	Henry J Tipping J Baragwanath J
Appearances:	J H Wiles for C N Maney A Couchman for M W Henriksen J C Pike and S Gray for the Crown
Judgment:	30 March 2000

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

Introduction and result

On 26 March 1999 the applicants were convicted by a jury in the High Court at Auckland of being accessory after the fact to the murder by Stephen Ralph Stone of Dean Wade Fuller-Sandys on or about 21 August 1989. Stone was convicted as principal and the applicant Maney’s sister, Gail Denese Maney, as party to that murder, and the applicants of having assisted Stone in disposing of the body in order to avoid arrest or conviction. Stone was further convicted of the rape and murder of Leah Stephens, in which the other accused were not implicated.
The summing up was in unusual form, no doubt in response to the way in which the major Crown and defence contentions were presented. It did not, as is normal, deal distinctly with the Crown and defence case on each count against each accused. Instead it consisted largely of successive summaries of the evidence of each witness, with comment as to aspects of credibility. While adequate in relation to the common Crown case against all accused and the common defence adopted by all accused, it did not deal with the further individual defences of Ms Maney and of Mr Henriksen.
On 21 October 1999 this Court allowed an appeal by Ms Maney against her conviction, on the ground that the trial judge in summing up failed properly and adequately to put her defence to the jury. A retrial is pending.
The applicants now seek leave to appeal out of time against their convictions, each contending that the summing up is similarly defective in relation to his defence.
The first ground advanced in support of each application was that the same argument as led to the allowance of Ms Maney’s appeal is available to the applicant. Neither application succeeds on that ground. The remaining question is whether there is any other basis for the appeal. We are satisfied that no other ground is available to Mr Maney and his application fails. We consider however that the judge when summing up ought to have put directly to the jury a further argument advanced at trial by Mr Henriksen. That did not occur and we are satisfied that he is entitled to a new trial. Our reasons follow.

Background

Mr Fuller-Sandys went missing in about August 1989. His body has never been located. His car was found at Whatipu where he had been accustomed to fish and it was initially thought that he had probably been swept off the rocks and drowned. That conclusion was supported by evidence that a beach search had revealed items identified as his.
At about the same time Leah Stephens went missing. The remains of her body were found at Muriwai in June 1992. From the Police enquiry into her death the Crown obtained the evidence led against Stone, Mrs Maney and the applicants in relation to the death and disposal of the body of Mr Fuller-Sandys.

Putting the defence case

In every trial by jury it is the obligation of the Judge to ensure that the essential issues in the case are placed clearly before the jury prior to their retirement.
The obligation is usually discharged by
the now conventional practice of [the judge in summing up] reviewing the case for the Crown and for the defence by reference to the points made by counsel on behalf of the parties (R v Foss (1996) 14 CRNZ 1 at page 4)

a course which the applicants submit was not followed in this case.

The question on these applications is whether the issues affecting the applicants were placed before the jurors in the summing up with such clarity and in sufficient detail as to allow them properly to perform their function.
The crime alleged against the applicants had three elements:
(1)that Stone murdered Mr Fuller-Sandys;
(2)that each knew of that killing;
(3)that each assisted Stone in disposing of the body in order to avoid arrest or conviction.

We asked counsel for each applicant to identify the issues advanced at trial on behalf of his client.

Part of the argument of Mr Wiles for Mr Maney and of Mr Couchman for Mr Henriksen was common. As to the first element, both counsel agreed that their clients had made common cause with counsel for Stone, and with each other, in disputing the Crown’s assertions that Stone murdered Mr Fuller-Sandys, and that he did so at the Maney property in or about August 1989. That defence included challenging the evidence of alleged eye witnesses.
As to the second and third elements, the dispute was whether the applicants with knowledge that Stone had murdered Mr Fuller-Sandys, assisted him in the disposal of his body for the purpose of avoiding arrest or conviction. Since the same witnesses testified to those elements, the challenge to their overall credibility overlapped all elements.
Mr Wiles’ contention that Mr Maney had not been present at such event was a facet of the common case. While pointing to one witness’s failure to identify him, he made no separate submission that his case should be treated as essentially distinct from that of his co-accused. He had made partial admissions to two witnesses, neither of whom was suggested to have reason to fabricate evidence against him. In cross-examining them he took the position that he had been romancing in what he had said to them.
Mr Couchman’s client Mr Henriksen had made no admissions. He advanced a double argument: as well as supporting the common case, he asserted both in a statement to the police and at trial that even if there had been a killing and disposal of the body, there were affirmative reasons why his implication in these events had developed from an initial failure by anyone to involve him through to a false concerted identification of him by the eye witnesses. He contended that, as in relation to Ms Maney, the judge erred in failing to deal with his distinct case.
Each counsel argued that there was miscarriage of justice affecting his client and warranting a new trial.

The course of the trial

Neither applicant elected to give evidence, although each relied upon defence evidence called on behalf of Ms Maney, disputing the Crown’s contention that a burglary occurred as early as August and provided a motive for her to incite Stone to murder Mr Fuller-Sandys.
It was common ground that each defence counsel had raised both in cross-examination and in his address to the jury the respective defence which it is submitted the judge failed to put.
In summing up, after dealing in the first part of the summing up with standard topics, the judge turned to the indictment which had been handed to the jury. It was as follows:
1THE CROWN SOLICITOR AT AUCKLAND charges that STEPHEN RALPH STONE and GAIL DENISE MANEY, on or about 21 August 1989, at Auckland murdered DEAN WADE FULLER-SANDYS.
2THE said Crown Solicitor further charges that GAIL DENISE MANEY, MARK WILLIAM HENRIKSEN and COLIN NEIL MANEY on or about 21 August 1989, at Auckland, knowing that STEPHEN RALPH STONE had murdered DEAN WADE FULLER-SANDYS assisted the said STEPHEN RALPH STONE in disposing of the body of the said DEAN WADE FULLER-SANDYS in order to enable the said STEPHEN RALPH STONE to avoid arrest or conviction.
3THE said Crown Solicitor further charges that STEPHEN RALPH STONE on or about 26 August 1989, at Auckland, murdered LEAH STEPHENS.
4THE said Crown Solicitor further charges that STEPHEN RALPH STONE on or about 26 August 1989, at Auckland severely violated LEAH STEPHENS by raping her.
He then handed the jury a document in the following form
If you have found the accused STEPHEN RALPH STONE guilty of the murder of Dean Fuller-Sandys.
(a)and if you have found the accused GAIL DENISE MANEY not guilty of the murder or manslaughter of Dean Fuller-Sandys do you find the accused GAIL DENISE MANEY guilty or not guilty of being an accessory after the fact to the murder of Dean Fuller-Sandys in the terms set out in the indictment?
(b)Do you find the accused MARK WILLIAM HENRIKSEN guilty or not guilty of being an accessory after the fact to the murder of Dean Fuller-Sandys in the terms set out in the indictment?
(c)Do you find the accused COLIN NEIL MANEY guilty or not guilty of being an accessory after the fact to the murder of Dean Fuller-Sandys in the terms set out in the indictment?
It would have been clear to the jury that they must consider first whether Stone was proved to have murdered Mr Fuller-Sandys, and, in that event, whether each applicant was proved to have assisted Stone in the disposal of the body to allow him to avoid arrest or conviction for that murder.
There remains for consideration whether it must also have been clear to the jury what was the position of each applicant on those issues, so as to have it clearly in their minds after they retired.

The first element

As to the first element, the jury received in the summing up adequate directions concerning the need for the Crown
∑to establish death
∑to exclude accident in order to prove homicide
∑to prove killing by an unlawful act
∑to prove that Stone committed the killing
The judge reminded the jury that
the defence has advanced the defence that [Mr Fuller-Sandys] was not killed by another person, directly or indirectly, but in fact may well have slipped off the rocks and drowned whilst fishing on the night of the 21^st of August.
That was, as Mr Pike put it, “the main combined defence theory”. Its obverse was the defence challenge to the credibility of the Crown witnesses. We will return to the applicants’ submission that such challenge was not left properly to the jury.

The second and third elements

The judge’s directions as to the legal content of the second and third elements were not challenged. He set out what the Crown said as to its case. Again we will return to the common defence theory and to the applicants’ submissions that their cases were not properly put.

Aspects of the summing up complained of by applicants

Mr Wiles and Mr Couchman confirmed that before the jury all accused had supported the case for Stone, that there had been no murder. They submitted that the features of the summing up that resulted in the retrial of Ms Maney, including the basic item of motivation for the alleged murder, required the same result on their appeals. They submitted that the doubt as to Ms Maney’s guilt must have a domino effect, with the applicants also being entitled to the benefit of that doubt.
They further argued that the judge in summing up ought to have provided greater detail of the defence case. He should, they said, have put more specifically and directly the proposition that credibility, especially of the four principal Crown witnesses, should be assessed as an integral part of the defence of accidental drowning, rather than by itself.
Then they contended that other theories as to how Mr Fuller-Sandys met his death should have been marshalled in the summing up.

Analysis of the evidence and the cases advanced

To support the contention that the common defence case should have been put more substantially by the trial judge they performed an elaborate analysis of the evidence and of the respective cases of the Crown, and of the defence as advanced in cross-examination. The following are some of the major themes.

Mrs Salle

The evidence upon the first element commenced with that of a next door neighbour of Mr and Ms Maney, Mrs Salle. She gave an account of observing a burglary at their property in July 1989, and described the burglar to Ms Maney and to AB and CD. Some drugs and clothing were taken in the burglary. The Crown contended that Ms Maney took the description to refer to Mr Fuller-Sandys, confronted Mr Fuller-Sandys at a tavern and then arranged for AB, with whom he had previously had a sexual relationship, to lure him to the Maney property where he was killed.
The argument advanced successfully on Ms Maney’s appeal was that the judge failed to put her defence that she vehemently denied such confrontation and allurement, that the burglary occurred well after Mr Fuller-Sandys’ disappearance, and that Mrs Salle’s description of the burglar as skinny, olive skinned, with black hair and very small–built did not fit Mr Fuller-Sandys.
At trial, Mr Wiles for Mr Maney challenged Mrs Salle’s evidence as to the stage of its occurrence and had her endorse her description which did match Mr Fuller-Sandys.
Mr Couchman for Mr Henriksen put to her that she had previously given the date of the burglary as later than October; that it was after the power supply had been connected to the Maneys’ house.
Both therefore joined Stone and Ms Maney in challenging the Crown’s case as to the time and place as well as the fact of the killing.

AB

AB had been working in a massage parlour. She spoke of being at the Maneys’ house in August 1989 when a burglary occurred. She described Ms Maney’s reaction as very angry. She said that from the neighbour’s description Ms Maney thought the burglar was Mr Fuller-Sandys. She gave evidence that she had telephoned him to ask him to come to the Maneys’ house, and that there was then a “big confrontation” involving Stone, Ms Maney and Mr Fuller-Sandys. She then described an event in the garage involving a number of people including Stone, Ms Maney, Mr Maney, Ms Stephens, two other men and herself. She described Stone’s shooting Mr Fuller-Sandys more than once with a small gun, and then handing the weapon to other men including both applicants, each of whom also shot him. She deposed that she, another woman and Mr Maney helped put Mr Fuller-Sandys’ body into the boot of a car. She asserted that “the men” drove the car that the body was in, drawing that inference from their disappearance when the car had gone.
Her evidence, if accepted, provided a basis for both elements of the crimes alleged against the applicants.
Her evidence was challenged by counsel for both applicants, each seeking to dispute his client’s involvement with any episode involving Mr Fuller-Sandys.
Mr Wiles for Mr Maney relied on admissions in cross-examination that she had not told the whole truth at the depositions hearing, that in one of several statements to the police she said she believed Mr Fuller-Sandys had gone missing when fishing, that she had been a regular user of drugs, had been forgetful, and had been a prostitute. In chief AB had said that Ms Maney was angry at the discovery of a burglary for which Ms Maney thought Mr Fuller-Sandys was responsible, so asked AB to ring him to arrange a confrontation. In cross-examination AB admitted that Mrs Salle’s description to her of the burglar “made a mockery” of AB’s suggestion that the man described was Mr Fuller-Sandys. She admitted a change of her account at different stages – from denying any knowledge of a killing, to seeing a body she did not recognise, to seeing Mr Fuller-Sandys’ body from an upstairs lounge, to being present in the garage where the killing took place. Mr Wiles challenged her suggestion that the body was that of Mr Fuller-Sandys; her evidence that the date was August; that Mrs Salle’s description fitted Mr Fuller-Sandys; and that Mr Maney was present. He pointed to a conflict between her evidence that Messrs Polley and Johnson left the scene after the shooting before the body had been lifted into the car and their account that they had helped dispose of the body.
Mr Couchman for Mr Henriksen put to AB that she did not know who left in the car after the alleged shooting, or in what car; challenged her identification of Mr Fuller-Sandys by reference to earlier statements that she did not know whose the body was, suggesting that she had changed her account after being in the company of police officers; and disputed both that the burglary had occurred in August and that Mrs Salle’s description fitted Mr Fuller-Sandys.

CD

CD had had a sexual relationship with Stone. She gave an account generally similar to that of AB. She said that both applicants had followed Stone in shooting Mr Fuller-Sandys and then Mr Maney had taken part in lifting the body into the boot.
Mr Wiles for Mr Maney put to her a statement that she had denied that the death had anything to do with the burglary; that Mr Maney was afraid of Stone; that if Mr Maney fired a shot that was only because Stone put his hand or finger over Mr Maney’s finger; that she had made a statement that she could not remember who had helped her put the body in the boot and that her recollection was hazy; that when she saw the body it was wrapped in material so she could not see the face.
Mr Couchman for Mr Henriksen elicited that she had made no reference to his client in a statement; put that the addition of his name in a further statement had resulted from instruction from Stone; that she was under pressure to co-operate with the police in supporting their theory and in incriminating Mr Henriksen; that the body was not of Mr Fuller-Sandys but of one Maka.

EF

EF gave evidence-in-chief that Mr Maney told her that he had been forced by Stone to shoot someone; his finger was pushed on to the trigger of a gun.
Cross-examined by Mr Wiles for Mr Maney she deposed that a rifle or shotgun was mentioned.
She agreed that CD, whom she knew well, had never mentioned witnessing a shooting but rather said that she had seen a body in the boot of a car.
She denied that a burglary had occurred at the Maney property, where she lived, at least until early August.

Karl Johnson

Mr Johnson, who knew Mr Henriksen, had immunity from prosecution. He gave an account similar to that of AB of the killing and the subsequent shots by Mr Henriksen and other men.
He described Stone’s getting two men, one of them Mr Henriksen, to place the body in the car and travelling with Stone, Mr Henriksen and another man to Muriwai Beach where they dug a hole and buried the body.
In cross-examination Mr Wiles challenged his account that the “other male person” went out to Muriwai with the body.
Mr Wiles submitted that it was remarkable that Mr Johnson did not know the name of the man who had been killed, and notable that Mr Johnson did not identify Mr Maney even though he had been to the Maney house previously and was in the car that disposed of the body. He pointed to a conflict in the evidence as to whether the body was wrapped.
Mr Couchman put two propositions: one that at the burial of Mr Fuller-Sandys the others present were in shock and seemed not to want to be there; another that he had invented the account about Mr Fuller-Sandys, as he had concerning a fictitious “Steve”.

Greg Polley

Mr Polley, who also had immunity from prosecution, deposed that he knew both applicants. He described going with Karl Johnson to the Maney property and gave evidence to similar effect to that of AB as to the killing and the subsequent shootings by the applicants and others.
He spoke of going with Johnson and Mr Henriksen down to the garage where others had just put Mr Fuller-Sandys’ body in the boot. He said that Mr Maney, Stone, Ms Maney, AB and CD were standing at the side of the car.
He said that he, Johnson, Stone and the applicants got into the car which then drove to Muriwai. He stayed in the car while others removed the body and went off, returning without the body.
He said that Mr Maney drove Mr Fuller-Sandys’ car to his regular fishing spot at Whatipu and left it in the car park. They then returned to the Maneys’ place. Concerned about finger prints he, Stone and Mr Henriksen and, he thought, Mr Maney, returned to Whatipu, and drove Mr Fuller-Sandys’ car back to the Maneys’ and removed the fishing gear and wiped it down. The car was then returned to Whatipu.

The witness was cross-examined by Mr Wiles for Mr Maney to establish that he had made a false statement when asserting that Ms Maney had driven the car to the burial site and that AB and Mr Maney were in the back seat with CD.
He was cross-examined by Mr Couchman for Mr Henriksen to the effect that his statements to the police about the burial of the body were a fabrication.

Michelle Kingston and David Arnot

Ms Kingston and Mr Arnot deposed to the partial admissions by Mr Maney. She was the mother of his child and was cross-examined only as to whether she believed his account to her of being made to help get rid of a body and of the shootings first by Stone and then by himself.
Mr Arnot was given a similar account. In cross-examination he acknowledged a serious drinking problem; again Mr Wiles’ questions were directed to his lack of belief of the truth of what Mr Maney told him.
Mr Wiles’ response to both witnesses was consistent with advancing the general common defence, denying that there had been a killing.

Scientific evidence

Scientific examination did not reveal any evidence of shooting at the Maney property.

Defence evidence

Called by counsel for Ms Maney, Mr Rickerby, who carried out electrical work at Mrs Salle’s house in October 1989, deposed that no power had been installed previously. Mr Williams, a drainlayer, recorded that there had been no drainage linkup until 20 October.

The common defence submission

Both counsel
∑challenged the accounts by Mrs Salle as to the date of the burglary said to provide the motive for the killing;
∑emphasised the evidence of various witnesses that Mrs Salle’s description of the burglar did not fit with that of Mr Fuller-Sandys;
∑challenged the evidence of the supposed eye witnesses, whom they had sought to discredit and whose account they disputed. Each denied knowledge of and participation in the crimes alleged against them.
Both argued that the judge failed to put clearly and effectively their client’s defences
∑that no killing of Mr Fuller-Sandys had been established;
∑that neither of them was proved to have taken part in assisting with the disposal of his body.
Both contended that their client’s position was similar to that of Ms Maney and that their appeals, like hers, should succeed.

Mr Wiles’ submission

Mr Wiles submission as crystallised before us was that the judge should have outlined the changes in the accounts of the eye witnesses, and the inconsistencies among the witnesses. He took us through a suggested direction that he submitted the judge ought to have given, rehearsing a series and sequence of changes in the evidence in conformity with the developing police theory.

Mr Couchman’s submissions

Mr Couchman’s submission for Mr Henriksen adopted that of Mr Wiles. But in addition he argued that the judge should have put plainly before the jury what he described as his primary argument
[i]whether or not there was a killing, he was not involved;
[ii]the evidence revealed a developing account, from a position that did not implicate him, through intermediate stages, to full incrimination;
[iii]in his first statement he advanced a claim that someone was lying about him for reasons of self protection;
[iv]to offer the jury an explanation for his incrimination, he had advanced a range of possible causes of death implicating other potential offenders and an elaborate theory as to how and why the alleged eyewitnesses came to give a false account.

Yet his essential argument that he should be treated differently from other accused was not put.

The Crown’s submissions

Mr Pike invited this Court to view the matter broadly. He argued that, on the issues raised by the common defence, as to both Mr Fuller-Sandys’ death and the disposal of the body, the judge had dealt with the major themes and with a subordinate one of whether a particular gang may have been involved.
He disputed Mr Couchman’s contention that his client’s case was materially different from those of the other accused, apart from Ms Maney whose position was distinguishable.

Discussion

The common defence case

The Crown case was met by the common defence case, which we have summarised. That case was essentially very simple.
At an early stage in the summing up the judge outlined its first limb, the theory that Mr Fuller-Sandys was not killed by another person but may have slipped off the rocks at Whatipu and drowned on the night alleged in the indictment. He later referred to the evidence supporting the “Headhunters” question which bore on an alternative theory as to the cause of death, referring to the submissions of counsel.
On the theme emphasised by Mr Wiles, of the credibility of the Crown witnesses, he made plain its importance in the case of the four principal Crown witnesses. He referred to the fact that AB and CD were under the witness protection programme, that Messrs Polley and Johnson had received immunity from prosecution, and the significance of that. He gave a lies direction. He referred to the defence submissions that the alleged eye witnesses might have some personal motive to lie, to the desirability for special caution in considering their evidence, and in relation to conflict to the desirability of looking for independent evidence supporting their account before considering whether to accept it. In the following passage he summed up the major contentions
Coming to the main evidence, Mr Foreman, Members of Jury, essentially the Crown case is that there are four witnesses who have had no or very limited opportunity to collaborate or discuss these matters with each other – this is the Fuller-Sandys matter – and yet all four tell remarkably similar stories. That is what the Crown really says. As far as Leah Stephens’ murder is concerned they say much the same thing except, of course, there are only two witnesses. The defence, of course, say that there are so many contradictions, so much misleading, so many lies, so many changes in stories and even on major points that all four of the witnesses are inherently incredible and that when you assess their evidence you will find that the Crown has not proved any of the charges beyond reasonable doubt against any of the accused.

He dealt in detail with the evidence of the four main witnesses and the attacks mounted on their evidence.

In his written submissions and oral argument Mr Wiles referred on a number of occasions to discrepancies and deficiencies in the evidence which counsel were able to point out in their final addresses to the jury.
Standing back and looking at the broad picture of the Crown case of murder and the defence response we are satisfied that the jury can have been in no doubt as to the nature of the competing contentions.
We are satisfied that, advanced as a component of the initial contention by all four parties throughout the trial, Mr Maney’s case and its details were squarely before the jury when they embarked on their deliberations.
A summing up must be viewed not in the abstract but as it would have appeared to the jury within the actual context of the trial.
When the judge came to sum up there had been a month of cross-examination and over two days of closing addresses. It cannot possibly have escaped the attention of the jury that the summing up was premised upon the conflict between the Crown’s assertion and Stone’s denial of his having killed Mr Fuller-Sandys. That was the point of high ground in the case, in relation both to Count 1 and to Count 2 of which it was the first element.
The judge did not in our view fail adequately to put the common defence case.

Ms Maney’s retrial should not lead to a retrial of the applicants

Nor do we accept the further ground advanced by each applicant, that the reasons for allowing Ms Maney’s appeal require a similar result for each of them.
Her case was that
[i]Mrs Salle’s account as to the burglary of the applicant’s property and her reaction to it when she was told of it was disputed by the applicant.
[ii]Her own confrontation with the deceased at the Westward Ho tavern prior to the murder was denied.
[iii]She denied asking AB to telephone the deceased and lure him round to her house on the night of the murder.
[iv]She had denied any involvement in the events of the night of the murder, both in respect of the confrontation between the co-accused and the deceased and in relation to what happened in the garage prior to and after the shooting of the deceased.
The judge addressed some of the detailed range of theories advanced on behalf of Mr Henriksen, including that
∑Mr Fuller-Sandys drowned
∑he was killed by a gang
∑but did not recapitulate the conflict of evidence as to whether Mrs Salle could have seen a burglary in August.
That last point was an important element in this Court’s decision to allow the appeal by Ms Maney. It was at the centre of the issue whether, as the Crown contended, she was angered by a burglary said to have been committed by Mr Fuller-Sandys and thus motivated to induce Stone to murder him.
The point is not without significance on the present appeals. Its being the original motive advanced by the Crown has potential relevance to an overall appraisal of whether the question over it impacts on the soundness of the applicants’ convictions. It is therefore necessary for us to perform such appraisal.
The Crown case had commenced with Mrs Salle’s account to Ms Maney, AB and CD of the burglary, Ms Maney’s anger followed by her request to AB to get Mr Fuller-Sandys around to her place, the altercation, the killing, and the disposal of the body. Such reconstruction was pivotal to the case against Ms Maney, who had a defence which was quite separate from that of Stone and should have been directly put. A reasonable doubt as to the existence of a motive for procuring the murder could go far towards her acquittal.
Ms Maney’s appeal was allowed on the ground of the inadequacy of the summing up in relation to her particular defence.
The Crown submits that the applicants’ cases are distinguishable from that of Ms Maney.
There was evidence conflicting with Mrs Salle’s account of the date on which she saw the alleged burglar and discrepancy between her description of the burglar and the appearance of Mr Fuller-Sandys. The Crown argues that she was at or opposite the site at an earlier stage; and the evidence is consistent with Ms Maney being angry with him because she thought he was Mr Fuller-Sandys. y.
The relevance of her motive to those cases was by way of introduction to the alleged episode of Stone’s killing and the applicants’ alleged disposal of the body.
We consider that Ms Maney’s case is distinguishable from those of both applicants.
While the evidence as to her motive was fundamental to her case and to this Court’s allowing her appeal, it was not central to the cases against the applicants and Stone. They did not turn on the conduct or the intention of Ms Maney.
Although there was error in the judge’s failure specifically to put Ms Maney’s defence, the applicants’ guilt was not dependent on hers.
The applicants had denied any involvement in the events of the night of the murder, both in respect of the confrontation between the co-accused and the deceased and in relation to what happened in the garage prior to and after the shooting of the deceased.
We are not persuaded that a proper summing up in relation to Ms Maney’s defence would have altered the jury’s conclusion in relation to the applicants. It follows that the Crimes Act’s requirement of miscarriage of justice is not met.

Mr Maney’s appeal dismissed

In relation to Mr Maney the result on all three elements of the count turned on the credibility of the principal Crown witnesses. Our conclusions that the common defence case was adequately put and that his position is materially distinguishable from that of his sister disposes of his application. Mr Maney is given leave to appeal out of time but his appeal is dismissed.

Mr Henriksen’s second defence not put; his appeal allowed

There remains for consideration Mr Henriksen’s position. He contends that, unlike Mr Maney, he advanced a second and distinct defence which, like Ms Maney, he was entitled to have put.
As noted above, Mr Couchman stated that his client's primary defence at trial was a denial of any involvement in the relevant events. This was the stance he had adopted in his police interview on 4 July 1997 and had maintained throughout. So, although Mr Henriksen made common cause with the other accused in arguing that the Crown had not proved any homicide of Fuller-Sandys, Mr Henriksen's essential defence was one of non-involvement in any homicide or its aftermath.
To advance this defence it was necessary for Mr Henriksen to explain why four witnesses, seemingly with no collaboration, had each given evidence implicating him. Two of these four witnesses (AB and CD) were cross-examined to show that they had not initially implicated Mr Henriksen, and only came to do so at a later stage. Mr Henriksen's case was that the witnesses had been pressured by the police to give evidence to support the police's view that he, Mr Henriksen, had been involved. Cross-examination of these two witnesses did indeed lay some foundation for what Mr Henriksen was contending. The other two witnesses (Messrs Johnson and Polley) were not cross-examined at all in an endeavour to show that they were in error in implicating Mr Henriksen. As this was a key aspect of Mr Henriksen's defence, these two witnesses should have been cross-examined along these lines, but counsel's failure to do so does not materially affect the substance of the present complaint. It is quite clear from the cross-examination of the first two witnesses that Mr Henricksen’s defence was that he had been wrongly implicated and had played no part in the relevant events, even if the jury were satisfied that Stone had killed Mr Fuller-Sandys.
When reviewing the evidence of the two witnesses who were cross-examined, the judge made no mention of Mr Henriksen's attack on their reliability, except for one brief and passing reference. In his summing-up the judge did not make any mention of this fundamental aspect of Mr Henriksen's defence. Mr Pike responsibly accepted that this was so, but argued the judge had no obligation to do so, because no evidentiary foundation had been laid for such a defence. We cannot accept that proposition. The cross-examination of the two witnesses had certainly elicited material upon which Mr Henriksen was entitled to rely. For example, one of the witnesses accepted that she had not implicated Mr Henriksen in either her first or her second statement to the police, in spite of having the opportunity of doing so. She also accepted she had been under pressure from the police to name Mr Henriksen as a participant.
It is possible that what is now portrayed as Mr Henriksen's primary defence did not appear in that light at the trial. There is no doubt, however, that his defence of non-involvement was run at the trial and was not adverted to in any substantive way by the judge. Nor was there any mention in the summing-up of why Mr Henriksen contended the four witnesses had come wrongly to implicate him. We are of the view that these omissions by the judge could have affected the outcome of the trial in Mr Henriksen's case. There is a risk of a miscarriage of justice in that respect.
We accordingly give Mr Henriksen leave to appeal, allow his appeal and quash his conviction and direct a new trial.

Solicitors:
J H Wiles, Auckland for Maney
A Couchman, Auckland for Henriksen
Crown Law Office, Wellington

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Citations

R v Maney Ca450/99 [2000] NZCA 437

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[2000] NZCA 437

30 March 2000