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The Queen v Campbell [2007] NZCA 121 (4 April 2007)

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The Queen v Campbell [2007] NZCA 121 (4 April 2007)

Last Updated: 20 April 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA243/06
[2007] NZCA 121

THE QUEEN

v

JASON WHETU CAMPBELL

Hearing: 6 March 2007

Court: Ellen France, John Hansen and Williams JJ

Counsel: J H M Eaton for Appellant
D La Hood for Crown

Judgment: 4 April 2007 at 10 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

B The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Williams J)

Issues

[1] Following trial in the Christchurch District Court commencing on 15 May 2006 the appellant, Mr Campbell, and his co-accused, a Mr McCausland, were both convicted on one count of aggravated robbery of the Lodge Tavern in Christchurch on 16 February 2005. They had originally been charged jointly with a Ms Spooner and a Mr Telfar but they pleaded guilty and Ms Spooner gave Crown evidence at trial.
[2] On 6 June 2006 the appellant was sentenced to imprisonment for nine years with a minimum period of five years.
[3] Mr Campbell appeals to this Court against his conviction on the basis of the way in which Mr McCausland’s Police statement was dealt with at trial.
[4] He also appeals against the sentence imposed, asserting it was manifestly excessive by comparison with those imposed on his co-accused.

Facts

[5] Late in the evening on Wednesday, 16 February 2005, an intruder, whom the Crown said was the appellant, armed with a .22 rifle gained entry to the Lodge Tavern, pointed the rifle at the manager who was cashing up and demanded he hand over the bar takings. The tavern had a number of gaming machines which were usually emptied on Wednesday evenings and the intruder also required the manager to empty those machines and hand over the takings. Not all were emptied before the intruder ordered the manager to desist. In the tavern’s office the intruder ordered the manager at gunpoint to lie face down on the floor, bound him with insulation tape and threatened to shoot him in the event of pursuit.
[6] Shortly afterwards, the two former co-accused entered the tavern. They took further cash. All then left in a vehicle.
[7] Some $31,588.34 in total was taken in the robbery. Little was recovered.
[8] Ms Spooner had worked at the tavern for about six months before the robbery and become familiar with the manager’s cash-handling habits, including his emptying of the gaming machines after business closed on Wednesday evenings. Evidence at trial was that Mr Telfar and she had planned the robbery some days before it occurred.
[9] Much of the evidence against the appellant at trial was circumstantial. Some examples are discussed in the following paragraphs.
[10] Ms Spooner and Mr Telfar were at the appellant’s address on the evening in question with Mr McCausland. Evidence at trial was that the four left the premises in a borrowed vehicle and returned the vehicle to its owner late that evening. Fingerprints discovered on the vehicle included those of the appellant, although an exculpatory explanation for their presence was offered at trial.
[11] The Police were led to the address of the lender of the vehicle because a worker at a nearby tavern saw persons in a car acting suspiciously at about the time of the robbery and noted the registration number. He also noted a man secrete something in the vicinity of the vehicle near where Police later located a .22 rifle which had been wiped clean.
[12] The manager of the Lodge Tavern gave Police a description of the principal intruder’s clothing. While the manager’s estimates of height varied, his description of the intruder’s clothing was consistent with a top found in a drawer with other items at the appellant’s address seven days after the robbery, and one of his height estimates matched that of the principal offender given by the independent tavern employee. The appellant’s partner also admitted he had previously worn the top found in his drawer.
[13] On executing the search warrant, Police also discovered a roll of insulation tape in the grounds of the appellant’s property which was consistent with that used to bind the manager. Police also discovered a glove at the appellant’s address which matched the manager’s description and a quantity of coins, though nothing like the amount the appellant was said to have received.
[14] Police interviewed the appellant on 24 February 2005. He identified a number of persons present at his address that evening including those who later became his co-accused, but claimed to have been intoxicated under the influence of marijuana and being "passed out on the bed" at the time of the robbery. He claimed that later he was awakened by sounds in the house including people "trying to stash money". He disavowed any participation in the robbery.
[15] Mr Campbell did not give evidence at trial but called his partner who said he was drunk that evening and "crashed out on the bed" she shared with him until the following morning.
[16] The nub of the present appeal is, however, that when the appellant’s co-accused, Mr McCausland, was interviewed by Police on 23 February 2005 he initially said he had nothing to do with the robbery and was at home at the time. However, some time into the interview Mr McCausland asked to see Mr Telfar’s Police statement. He was shown it and then said "I’ll tell you the shooter. It’s Jason Campbell." He went on to describe the earlier planning – asserting Mr Campbell was a participant – and then described what occurred during the robbery, though saying he remained in the vehicle, too intoxicated to alight. He said the proceeds had been split three ways between Ms Spooner and Messrs Campbell and Telfar.
[17] Mr Campbell was re-interviewed on 1 March 2005. After giving the statement mentioned, he was shown Messrs Telfar and McCausland’s statements. He was not invited to comment and said nothing after reading them, bar repeating he was not involved.
[18] Mr McCausland’s statement was recorded by the interviewing officer in his notebook in question and answer form. It was read in the usual way to the jury but the notebook was not produced.
[19] The relevant portion of the summing-up began with the usual direction for the jury to consider the cases against the two accused separately. The Judge then summarised the statements made by the two accused including that Mr McCausland had said that "Mr Campbell had the gun" and that when he returned "Mr Campbell said that he had stashed the gun and Mr Campbell had a lot of cash". The Judge then gave the jury the usual direction about the statements not being on oath and thus not subjected to cross-examination and continued:

[17] Obviously each of the two men made statements to the police. The law is clear. A statement made by one accused person may if you find it to be true be evidence against him but it is not evidence against another person who it may implicate. In other words, you can use the statement made by Mr McCausland only against Mr McCausland and not against Mr Campbell who is accused in the statement. The reason for this is clear and will be evident to you and that is that at the time Mr McCausland made the statement Mr Campbell was not present and had no opportunity to refute it, to question it or cross-examine Mr McCausland on it. As I say, this is important. Mr McCausland’s statement which implicates the others is evidence only against him and not against Mr Campbell so that when you consider the case against Mr Campbell you do not use or consider what Mr McCausland said about him. Equally, when you consider the case against Mr McCausland, you do not consider what Mr Campbell may have said about him in his statement.

[20] He then summarised the essential issues in the trial including whether the Crown had proved Mr McCausland’s participation and, in relation to the appellant, the "issue is whether he was the man with the gun". In summarising the Crown case against the appellant, the Judge returned to his earlier theme by saying:

[25] Here I repeat that you must not factor in and consider in your consideration of what facts point to Mr Campbell’s complicity, what Mr McCausland said about him in Mr McCausland’s statement.

[21] Then, in summarising counsel’s closing addresses, the Judge said that defence counsel "emphasised, as I have done, that Mr McCausland’s statement is not to be factored in or used by you as evidence against Mr Campbell".

Conviction Appeal

Submissions

[22] For the appellant, Mr Eaton – who was not counsel at trial – submitted there had been a miscarriage of justice by the Crown being permitted to adduce evidence of Mr McCausland’s statement at the joint trial, coupled with inadequate directions by the trial Judge as to the inadmissibility of Mr McCausland’s statement against Mr Campbell. Mr Eaton submitted either Mr McCausland’s statement should have been edited before being given in evidence or the trials of the two accused should have been severed, though acknowledging there was no application at trial for severance.
[23] As to editing, although nothing to that effect appears in the material before us, it appeared from Crown Counsel’s notes as conveyed to us by Mr La Hood that an unsuccessful application to edit the statement was made by appellant’s trial counsel in chambers. It appears no note of it was made by the Judge.
[24] Mr Eaton made the point that, as far as the appellant was concerned, the sole issue at trial was whether the Crown could prove that Mr Campbell was the principal intruder and since Ms Spooner denied the appellant was one of the party which went to the tavern and refused to name the appellant as the third man in the car, the principal mention of Mr Campbell at trial was in Mr McCausland’s statement. He submitted that, despite the Judge’s remarks in summing-up, it would have been virtually impossible for the jury to act in accordance with his directions and disregard Mr McCausland’s statement when considering whether the Crown had proved Mr Campbell’s identity as the principal robber.
[25] Mr Eaton relied on the leading decision in this area of the Full Court of this Court in R v Fenton CA223/00 and CA299/00, 14 September 2000. That, too, was an appeal where various accused made out of court statements inculpating others. An application for severance was dismissed before trial. On appeal and after reviewing relevant authorities in this country, the Full Court held:

[25] What the New Zealand cases show, and indeed most of the cases from other jurisdictions, is that there is a substantial public interest in having a joint trial of those who are said to have jointly committed a crime. The reasons are primarily to avoid the risk of inconsistent verdicts, to have all aspects of a joint enterprise considered at one and the same time, and to prevent duplication of time and effort for witnesses and the court system generally. This public interest will ordinarily outweigh the interests of an individual accused in not having inadmissible evidence before the jury. That is the usual problem in a joint trial from the accused's perspective. When given proper directions juries are to be regarded as capable in most cases of understanding and applying the distinction between admissible and inadmissible evidence.
[26] There may, however, be occasions when the weight of the inadmissible evidence, against that of the admissible, makes it unfair to an accused, notwithstanding the trial Judge's directions, to expect the jury to act only on the evidence which is admissible. Similarly, there may be cases in which the difficulties in isolating the admissible from the inadmissible make it unfair to expect the jury to undertake that exercise. Those are the usual circumstances in which severance may be justified. Ultimately the question is whether the applicant for severance can demonstrate some feature of the case which clearly outweighs the ordinary approach and the basis upon which it rests, and which therefore mandates severance in the overall interests of justice. After verdict the same general considerations apply but, in order to succeed, the appellant must show that the joint trial has resulted in a miscarriage of justice.

[26] Those observations were given rather more specificity by this Court in R v Peters and Southon CA430-431/05, 29 March 2006. Again that was an appeal against an order for separate trials made in the context of out of court statements by an accused implicating another. The Court followed R v Brown (1987) 3 CRNZ 132 at 133 to the effect that where the case for the Crown is that the "accused were engaged on an enterprise or joint venture in the course of which the crime charged was committed then prima facie the accused should be tried jointly even at some risk of prejudice to the case of one of them." The Court then observed:

[18] We are satisfied that appropriate judicial directions can mitigate the risk of injustice to Mr Peters. While it will be a matter for the trial judge, we would recommend that he or she adopt the course taken by the trial judge in Fenton (as approved by this court). The following steps should be considered:

(a) Before Ms Southon’s statement is played to the jury, a warning should be given that it is admissible only with respect to the case against her and is not admissible with respect to the case against Mr Peters. That warning, with brief reasons therefor, should be recorded in the trial transcript.
(b) The judge should be careful to sum up the two cases separately. This would seem to be a case where a written question trail is sensible, so that the different cases against each accused can be emphasised. If that course is adopted, it would be sensible for the judge to repeat in that question trail the warning prohibiting the use of Ms Southon’s statement when considering the case against Mr Peters. This document could also perhaps list the relevant evidence (issue by issue) with relation to each accused separately.
(c) It would be highly desirable for the jury to be given the transcript of evidence in this case. That is for two reasons. First, they will then have before them twice in written form (once in the transcript, and again in the question trail) the warning against improper use of Ms Southon’s statement. Secondly, they will then have all the evidence before them in the jury room, not just the transcript of Ms Southon’s videotaped statement. The judge should consider giving transcript references in the question trail: see R v Taylor [2005] NZCA 93; (2005) 21 CRNZ 1035 at [128]- [136].

[27] While compelled to recognise the trial Judge made the observations recounted during his summing-up as to the inadmissibility of Mr McCausland’s statement against the appellant, Mr Eaton made the point, correctly, that the Judge said nothing to the jury about that topic when Mr McCausland’s statement was introduced. Mr Eaton also suggested the summing-up of the two cases inadequately separated them.
[28] Mr Eaton also pointed to the Crown’s reliance on Mr McCausland’s statement in its closing address and the Crown’s assertions of its consistency with Ms Spooner’s evidence. The trial Judge also made extensive reference to Mr McCausland’s statement including referring to the passage in which Mr McCausland identified the appellant as the gunman.
[29] As an alternative to severance or a firm and clear direction, Mr Eaton submitted the Judge should have edited Mr McCausland’s statement to remove reference to the appellant by name. Mr Eaton observed that in Lobban v R [1995] 1 WLR 877 (PC) the Privy Council held that a trial Judge was not permitted to edit out any portion of a co-accused’s statement on the request of an accused if the co-accused objected to that course of action. Previously, Mr Eaton submitted, this Court in R v McCallum (1988) 3 CRNZ 376 (CA) recognised the discretion to edit.
[30] We do not need to deal with questions about the jurisdiction or scope of the ability to edit. In this case, where severance would not have been granted even if sought, the matter was left to be dealt with, as it was, by appropriate direction.
[31] Next, Mr Eaton submitted severance of the trials should have been ordered. However, given there was no application for severance, his submissions inevitably raised the issue of trial counsel’s competence. Faced with that, Mr Eaton sought adjournment of the hearing to obtain the necessary waivers and evidence and reformulate Mr Campbell’s grounds of appeal.
[32] The adjournment application was declined on the basis that any severance application would have been bound to fail. In addition, there is, of course, well-settled authority that all accused in a joint venture should be tried together. Further, there had been ample time for counsel to have obtained the necessary waivers. Similarly, we took the view that no error had been demonstrated in the Judge’s management of the trial having regard to the facts of the case and the way in which he dealt with the issue of Mr McCausland’s statement.
[33] Mr La Hood submitted, as we have found, that any severance application would have failed, as did the application to edit. This was a joint trial of two out of four persons charged with participating in the same robbery, travelling there and back in the same car and stealing money from a tavern one after another or being party to the robbery. He submitted this was not one of the cases discussed in Brown (at 133) which immediately follows the passage earlier cited, that:

[W]here there is such a volume of evidence against one accused, but not the other, that it would be well nigh impossible for a jury to perform the task of determining guilt or innocence by reference only to the evidence admissible against each, and the persuasive value of the inadmissible evidence is out of proportion to the probative value of the admissible evidence, severance will avoid injustice to one or both.

[34] Mr La Hood submitted that the trial Judge’s directions on admissibility of Mr McCausland’s statement were correct. The jury could have been left in no doubt as to the law on the issue. There was no material misdirection or miscarriage.

Discussion and decision

[35] While the trial Judge did not provide the jury with the direction as to admissibility mentioned in Peters and Southon at [18](a) at the time Mr McCausland’s statement was given in evidence, that elaboration of best practice was clearly influenced by the facts of the appeal and was, in any case, given over a year after the appellant’s trial. Depending on the complexity of the trial, we do not regard it as an invariable requirement.
[36] That said, the directions in the summing-up could have left the jury in no doubt that Mr McCausland’s statement about the appellant’s participation in the robbery was inadmissible against Mr Campbell and they were forbidden to take it into account in that regard. The Judge repeated the effect of the direction twice more during the summing-up. We see nothing in the suggestion the directions given were inadequate.
[37] This was not a case where there was a substantial imbalance in the evidence against the two accused such as to risk blinding the jury to the effect of the Judge’s strong and repeated directions about the inadmissibility of Mr McCausland’s statement. As shown, there was ample circumstantial evidence from which the jury could properly conclude the Crown had satisfied the burden of demonstrating Mr Campbell was the principal robber. The inadmissibility of Mr McCausland’s statement against the appellant was simply one facet of the overall trial and was properly dealt with by the trial Judge.
[38] In those circumstances, the appeal against conviction is dismissed.

Sentence appeal

Submissions for appellant

[39] Mr McCausland and Ms Spooner were sentenced to four years and three and a half years imprisonment respectively. Mr Eaton submitted the nine year sentence imposed on the appellant was manifestly excessive having regard to the sentences on his two co-offenders. He noted Mr Telfar was sentenced to nine and a half years’ imprisonment following his plea of guilty but that, Mr Eaton said, was complicated by the fact that he was simultaneously sentenced to eight years’ concurrent imprisonment for an unrelated robbery and was not sentenced to a minimum period of imprisonment.

Judge’s remarks on sentencing

[40] In his sentencing remarks, the Judge distinguished between Mr McCausland’s role as a secondary participant and that of the appellant as the principal robber. Aggravating features for both accused included presentation of a loaded weapon, the violence in tying up the manager, the amount stolen, the careful planning and the vulnerability of the victim. He was unable to discern any mitigating features for either offender.
[41] Different terms of imprisonment were thus imposed largely because of the different levels of participation of the two co-accused and having regard to R v Mako [2000] 2 NZLR 170 at [54] (CA).
[42] The minimum term of imprisonment was imposed on the appellant because of his lengthy list of convictions, including several for violent offences.

Submissions for Crown

[43] Mr La Hood pointed to the factors identified by the sentencing Judge as justifying the sentence imposed on the appellant. He noted the Judge also took account of the sentences imposed on Mr Telfar and Ms Spooner. The sentences imposed on both were described by the Judge as "lenient".
[44] Mr La Hood made the point that the starting point for the sentence on Mr Telfar must have been greater than the nine and a half years imposed given he was allowed a discount for the guilty plea. The starting point for Ms Spooner was six years.

Discussion and decision

[45] We find no error in the Judge’s approach to sentencing the appellant. Having regard to Mako, a starting point of nine years’ imprisonment was well within range for a serious robbery involving detailed planning, a loaded firearm, actual violence and theft of a large sum of money.
[46] The appellant had a lengthy list of previous convictions including being sentenced to a number of terms of imprisonment. They include convictions in 1997 for robbery by assault for which he was imprisoned for nine months and June 1999 when he was sentenced to two years imprisonment for aggravated assault and burglary.
[47] This was a case with serious aggravating features and no mitigating features. The starting and end points for the Judge were accordingly well within range and the term imposed was not manifestly excessive.
[48] Similarly, we can see no basis for intervening in the minimum period of imprisonment imposed. We agree with the remarks of the sentencing Judge:

Where a man robs another at gunpoint with a loaded rifle I would think that most persons in the community would have thought that the prospect of release after three years was insufficient for those purposes [accountability, denunciation, deterrence and the protection of the community]. You have a serious record of violence and a clear inclination to its use in dangerous circumstances.

[49] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington

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[1]	Following trial in the Christchurch District Court commencing on 15 May 2006 the appellant, Mr Campbell, and his co-accused, a Mr McCausland, were both convicted on one count of aggravated robbery of the Lodge Tavern in Christchurch on 16 February 2005. They had originally been charged jointly with a Ms Spooner and a Mr Telfar but they pleaded guilty and Ms Spooner gave Crown evidence at trial.
[2]	On 6 June 2006 the appellant was sentenced to imprisonment for nine years with a minimum period of five years.
[3]	Mr Campbell appeals to this Court against his conviction on the basis of the way in which Mr McCausland’s Police statement was dealt with at trial.
[4]	He also appeals against the sentence imposed, asserting it was manifestly excessive by comparison with those imposed on his co-accused.

[5]	Late in the evening on Wednesday, 16 February 2005, an intruder, whom the Crown said was the appellant, armed with a .22 rifle gained entry to the Lodge Tavern, pointed the rifle at the manager who was cashing up and demanded he hand over the bar takings. The tavern had a number of gaming machines which were usually emptied on Wednesday evenings and the intruder also required the manager to empty those machines and hand over the takings. Not all were emptied before the intruder ordered the manager to desist. In the tavern’s office the intruder ordered the manager at gunpoint to lie face down on the floor, bound him with insulation tape and threatened to shoot him in the event of pursuit.
[6]	Shortly afterwards, the two former co-accused entered the tavern. They took further cash. All then left in a vehicle.
[7]	Some $31,588.34 in total was taken in the robbery. Little was recovered.
[8]	Ms Spooner had worked at the tavern for about six months before the robbery and become familiar with the manager’s cash-handling habits, including his emptying of the gaming machines after business closed on Wednesday evenings. Evidence at trial was that Mr Telfar and she had planned the robbery some days before it occurred.
[9]	Much of the evidence against the appellant at trial was circumstantial. Some examples are discussed in the following paragraphs.
[10]	Ms Spooner and Mr Telfar were at the appellant’s address on the evening in question with Mr McCausland. Evidence at trial was that the four left the premises in a borrowed vehicle and returned the vehicle to its owner late that evening. Fingerprints discovered on the vehicle included those of the appellant, although an exculpatory explanation for their presence was offered at trial.
[11]	The Police were led to the address of the lender of the vehicle because a worker at a nearby tavern saw persons in a car acting suspiciously at about the time of the robbery and noted the registration number. He also noted a man secrete something in the vicinity of the vehicle near where Police later located a .22 rifle which had been wiped clean.
[12]	The manager of the Lodge Tavern gave Police a description of the principal intruder’s clothing. While the manager’s estimates of height varied, his description of the intruder’s clothing was consistent with a top found in a drawer with other items at the appellant’s address seven days after the robbery, and one of his height estimates matched that of the principal offender given by the independent tavern employee. The appellant’s partner also admitted he had previously worn the top found in his drawer.
[13]	On executing the search warrant, Police also discovered a roll of insulation tape in the grounds of the appellant’s property which was consistent with that used to bind the manager. Police also discovered a glove at the appellant’s address which matched the manager’s description and a quantity of coins, though nothing like the amount the appellant was said to have received.
[14]	Police interviewed the appellant on 24 February 2005. He identified a number of persons present at his address that evening including those who later became his co-accused, but claimed to have been intoxicated under the influence of marijuana and being "passed out on the bed" at the time of the robbery. He claimed that later he was awakened by sounds in the house including people "trying to stash money". He disavowed any participation in the robbery.
[15]	Mr Campbell did not give evidence at trial but called his partner who said he was drunk that evening and "crashed out on the bed" she shared with him until the following morning.
[16]	The nub of the present appeal is, however, that when the appellant’s co-accused, Mr McCausland, was interviewed by Police on 23 February 2005 he initially said he had nothing to do with the robbery and was at home at the time. However, some time into the interview Mr McCausland asked to see Mr Telfar’s Police statement. He was shown it and then said "I’ll tell you the shooter. It’s Jason Campbell." He went on to describe the earlier planning – asserting Mr Campbell was a participant – and then described what occurred during the robbery, though saying he remained in the vehicle, too intoxicated to alight. He said the proceeds had been split three ways between Ms Spooner and Messrs Campbell and Telfar.
[17]	Mr Campbell was re-interviewed on 1 March 2005. After giving the statement mentioned, he was shown Messrs Telfar and McCausland’s statements. He was not invited to comment and said nothing after reading them, bar repeating he was not involved.
[18]	Mr McCausland’s statement was recorded by the interviewing officer in his notebook in question and answer form. It was read in the usual way to the jury but the notebook was not produced.
[19]	The relevant portion of the summing-up began with the usual direction for the jury to consider the cases against the two accused separately. The Judge then summarised the statements made by the two accused including that Mr McCausland had said that "Mr Campbell had the gun" and that when he returned "Mr Campbell said that he had stashed the gun and Mr Campbell had a lot of cash". The Judge then gave the jury the usual direction about the statements not being on oath and thus not subjected to cross-examination and continued:

[22]	For the appellant, Mr Eaton – who was not counsel at trial – submitted there had been a miscarriage of justice by the Crown being permitted to adduce evidence of Mr McCausland’s statement at the joint trial, coupled with inadequate directions by the trial Judge as to the inadmissibility of Mr McCausland’s statement against Mr Campbell. Mr Eaton submitted either Mr McCausland’s statement should have been edited before being given in evidence or the trials of the two accused should have been severed, though acknowledging there was no application at trial for severance.
[23]	As to editing, although nothing to that effect appears in the material before us, it appeared from Crown Counsel’s notes as conveyed to us by Mr La Hood that an unsuccessful application to edit the statement was made by appellant’s trial counsel in chambers. It appears no note of it was made by the Judge.
[24]	Mr Eaton made the point that, as far as the appellant was concerned, the sole issue at trial was whether the Crown could prove that Mr Campbell was the principal intruder and since Ms Spooner denied the appellant was one of the party which went to the tavern and refused to name the appellant as the third man in the car, the principal mention of Mr Campbell at trial was in Mr McCausland’s statement. He submitted that, despite the Judge’s remarks in summing-up, it would have been virtually impossible for the jury to act in accordance with his directions and disregard Mr McCausland’s statement when considering whether the Crown had proved Mr Campbell’s identity as the principal robber.
[25]	Mr Eaton relied on the leading decision in this area of the Full Court of this Court in R v Fenton CA223/00 and CA299/00, 14 September 2000. That, too, was an appeal where various accused made out of court statements inculpating others. An application for severance was dismissed before trial. On appeal and after reviewing relevant authorities in this country, the Full Court held:

[27]	While compelled to recognise the trial Judge made the observations recounted during his summing-up as to the inadmissibility of Mr McCausland’s statement against the appellant, Mr Eaton made the point, correctly, that the Judge said nothing to the jury about that topic when Mr McCausland’s statement was introduced. Mr Eaton also suggested the summing-up of the two cases inadequately separated them.
[28]	Mr Eaton also pointed to the Crown’s reliance on Mr McCausland’s statement in its closing address and the Crown’s assertions of its consistency with Ms Spooner’s evidence. The trial Judge also made extensive reference to Mr McCausland’s statement including referring to the passage in which Mr McCausland identified the appellant as the gunman.
[29]	As an alternative to severance or a firm and clear direction, Mr Eaton submitted the Judge should have edited Mr McCausland’s statement to remove reference to the appellant by name. Mr Eaton observed that in Lobban v R [1995] 1 WLR 877 (PC) the Privy Council held that a trial Judge was not permitted to edit out any portion of a co-accused’s statement on the request of an accused if the co-accused objected to that course of action. Previously, Mr Eaton submitted, this Court in R v McCallum (1988) 3 CRNZ 376 (CA) recognised the discretion to edit.
[30]	We do not need to deal with questions about the jurisdiction or scope of the ability to edit. In this case, where severance would not have been granted even if sought, the matter was left to be dealt with, as it was, by appropriate direction.
[31]	Next, Mr Eaton submitted severance of the trials should have been ordered. However, given there was no application for severance, his submissions inevitably raised the issue of trial counsel’s competence. Faced with that, Mr Eaton sought adjournment of the hearing to obtain the necessary waivers and evidence and reformulate Mr Campbell’s grounds of appeal.
[32]	The adjournment application was declined on the basis that any severance application would have been bound to fail. In addition, there is, of course, well-settled authority that all accused in a joint venture should be tried together. Further, there had been ample time for counsel to have obtained the necessary waivers. Similarly, we took the view that no error had been demonstrated in the Judge’s management of the trial having regard to the facts of the case and the way in which he dealt with the issue of Mr McCausland’s statement.
[33]	Mr La Hood submitted, as we have found, that any severance application would have failed, as did the application to edit. This was a joint trial of two out of four persons charged with participating in the same robbery, travelling there and back in the same car and stealing money from a tavern one after another or being party to the robbery. He submitted this was not one of the cases discussed in Brown (at 133) which immediately follows the passage earlier cited, that:

[35]	While the trial Judge did not provide the jury with the direction as to admissibility mentioned in Peters and Southon at [18](a) at the time Mr McCausland’s statement was given in evidence, that elaboration of best practice was clearly influenced by the facts of the appeal and was, in any case, given over a year after the appellant’s trial. Depending on the complexity of the trial, we do not regard it as an invariable requirement.
[36]	That said, the directions in the summing-up could have left the jury in no doubt that Mr McCausland’s statement about the appellant’s participation in the robbery was inadmissible against Mr Campbell and they were forbidden to take it into account in that regard. The Judge repeated the effect of the direction twice more during the summing-up. We see nothing in the suggestion the directions given were inadequate.
[37]	This was not a case where there was a substantial imbalance in the evidence against the two accused such as to risk blinding the jury to the effect of the Judge’s strong and repeated directions about the inadmissibility of Mr McCausland’s statement. As shown, there was ample circumstantial evidence from which the jury could properly conclude the Crown had satisfied the burden of demonstrating Mr Campbell was the principal robber. The inadmissibility of Mr McCausland’s statement against the appellant was simply one facet of the overall trial and was properly dealt with by the trial Judge.
[38]	In those circumstances, the appeal against conviction is dismissed.

[40]	In his sentencing remarks, the Judge distinguished between Mr McCausland’s role as a secondary participant and that of the appellant as the principal robber. Aggravating features for both accused included presentation of a loaded weapon, the violence in tying up the manager, the amount stolen, the careful planning and the vulnerability of the victim. He was unable to discern any mitigating features for either offender.
[41]	Different terms of imprisonment were thus imposed largely because of the different levels of participation of the two co-accused and having regard to R v Mako [2000] 2 NZLR 170 at [54] (CA).
[42]	The minimum term of imprisonment was imposed on the appellant because of his lengthy list of convictions, including several for violent offences.

[43]	Mr La Hood pointed to the factors identified by the sentencing Judge as justifying the sentence imposed on the appellant. He noted the Judge also took account of the sentences imposed on Mr Telfar and Ms Spooner. The sentences imposed on both were described by the Judge as "lenient".
[44]	Mr La Hood made the point that the starting point for the sentence on Mr Telfar must have been greater than the nine and a half years imposed given he was allowed a discount for the guilty plea. The starting point for Ms Spooner was six years.

[45]	We find no error in the Judge’s approach to sentencing the appellant. Having regard to Mako, a starting point of nine years’ imprisonment was well within range for a serious robbery involving detailed planning, a loaded firearm, actual violence and theft of a large sum of money.
[46]	The appellant had a lengthy list of previous convictions including being sentenced to a number of terms of imprisonment. They include convictions in 1997 for robbery by assault for which he was imprisoned for nine months and June 1999 when he was sentenced to two years imprisonment for aggravated assault and burglary.
[47]	This was a case with serious aggravating features and no mitigating features. The starting and end points for the Judge were accordingly well within range and the term imposed was not manifestly excessive.
[48]	Similarly, we can see no basis for intervening in the minimum period of imprisonment imposed. We agree with the remarks of the sentencing Judge: