Home | Databases | WorldLII | Search | Feedback Court of Appeal of New Zealand

King v R [2011] NZCA 664 (20 December 2011)

Last Updated: 18 January 2012

JUDGMENT OF THE COURT

A The appeal is allowed.

B The conviction is quashed.

C A retrial is ordered.

REASONS OF THE COURT

MILLER AND ASHER JJ
(Given by Asher J)

Introduction

[1] Matthew Patrick Heagney died as a result of head injuries that he suffered when he fell to the ground while being removed from a bar by the appellant Kevin Robert King and others. Following a jury trial Mr King was convicted of the manslaughter of Mr Heagney. He appeals against that conviction.

A forcible removal

[2] On 23 August 2009 Mr Heagney was 24 years old. Following a party that he had organised he went to the Shapeshifters bar in Blenheim shortly after 2.20 am. He went to join his girlfriend and he appears to have been in a somewhat emotional state. After being there about 15 minutes he left. Having gone outside he then changed his mind and decided to re-enter the bar. By then the bar had closed its doors to new entrants because of the late hour. Mr Heagney was refused re-entry. Nevertheless, he managed to slip past the bouncer and go inside for a short period before deciding again to leave. As he was on his way out he was recognised by the bouncer who had observed him slip past earlier. The bouncer confronted Mr Heagney with the intention of serving him with a trespass notice and something of an altercation ensued.
[3] Mr King was the manager of the bar. He saw the confrontation unfold and went to assist the bouncer. He approached Mr Heagney from behind and pulled him backwards. The Crown case was that at this point Mr King applied a carotid hold to Mr Heagney’s neck which rendered him either unconscious or barely conscious. Mr King’s case was that no such hold was applied, although he accepted in his video interview that he held Mr Heagney at times around the neck.
[4] A female bouncer Dewy Zuidema arrived to assist and the three staff lifted Mr Heagney and started to carry him out of the bar. As they exited the bar it was only Ms Zuidema and Mr King who were holding Mr Heagney. Mr King was walking forwards holding Mr Heagney’s upper body. On the way Mr Heagney lurched forward and Mr King hurt his back as he struggled to hold him.
[5] Once outside Ms Zuidema and Mr King released Mr Heagney and he fell to the ground. There were various accounts by the witnesses of the exact circumstances of the releasing.
[6] Whatever the circumstances of Mr King releasing Mr Heagney, there is no doubt as to what then happened. His head hit the footpath with sufficient force to cause a head injury that was not survivable. Both Crown and defence accepted that this was the fatal injury. The Crown had not suggested Mr Heagney would have died from the alleged application of the carotid hold alone. As a consequence of that head injury he died at 6.45 am in Wairau Hospital.

Arrest and trial

[7] Mr King was initially charged some three months after Mr Heagney’s death with manslaughter on the basis of a failure without lawful excuse to discharge a legal duty. On 31 March 2010 an indictment was filed in the High Court containing two counts: manslaughter by an unlawful act (assault) and manslaughter by failure without lawful excuse to discharge a legal duty. The charges were in the alternative, although notice was given at the time that the Crown was likely to elect to run with one or other of the alternatives.
[8] On 13 May 2010 the Crown served an amended indictment containing one count of manslaughter on the basis of an omission to discharge a legal duty. On 5 November 2010 the Crown applied to amend the indictment to replace that count with a count of manslaughter by an unlawful act (assault).
[9] The amendment was opposed on the basis the committal evidence did not disclose a continuing assault but rather three potential phases of relevance (the initial altercation, the headlock and the throwing or dropping of Mr Heagney onto the footpath) only the last of which could be the relevant unlawful act. Mallon J heard and determined the application on 19 November 2010, the Friday before the hearing. She allowed the amendment. She held:[1]

The events are connected and together are relevant to whether there was unreasonable force which was the operative cause of Mr Heagney’s death.

[10] She concluded that the count was sufficiently particularised.
[11] At the trial the Crown advanced its case on the alternative or cumulative bases that:

• (a) Mr King unjustifiably applied a carotid hold to Mr Heagney rendering him incapable of breaking his fall when he was subsequently dropped or thrown; and/or
• (b) Mr King deliberately and unjustifiably dropped or threw Mr Heagney on to the pavement.

[12] In relation to the application of the carotid hold, the defences raised were both self-defence or defence of another, and defence of land or a building. It was also denied that Mr Heagney was rendered unconscious or otherwise incapable of breaking his fall by Mr King’s acts.
[13] In relation to the dropping or throwing of Mr Heagney, the defence argued any release was involuntary, although if deliberate that self-defence or defence of another or land or a building applied.
[14] Mallon J directed the jury that while they needed to be unanimous on the question whether the Crown had proven beyond reasonable doubt that Mr Heagney’s death was caused by an “assault” by Mr King they were not required to be unanimous as to the basis for Mr King’s guilt. They could answer that question “by different routes”. Following her summing up she was challenged on this by defence counsel, and she issued a minute recording her reasons for her directions on this issue, which we consider later in this judgment.[2]

Submissions

[15] Mr King for the appellant relied on a notice of appeal which contained some 16 grounds. While not abandoning any of these grounds, in his oral submissions he focussed on two points. First, Mr King submitted that Mallon J erred in stating to the jury that they were not required to be unanimous as to which of the alleged assaults by Mr King caused Mr Heagney’s death and that they could answer the question by different routes. He submitted that she was required to direct the jury that they needed to be unanimous as to the basis for Mr King’s guilt (whether (a) or (b) or both). Secondly, he submitted, relying on Mason v R,[3] that the composite nature of the count led to a substantial miscarriage of justice. He referred to the practical possibility of particular defences for each alleged basis: self-defence in respect of (a) and lack of intent in respect of (b).
[16] Counsel for the Crown submitted that the jury need not have been unanimous as to whether Mr King had deliberately dropped Mr Heagney or whether he had dropped him accidentally but having rendered him unable to break his fall by unjustifiably applying a carotid hold, so long as they were unanimous that “the appellant’s removal of Mr Heagney from the bar constituted an unlawful act that was causative of death”. Division of the count was neither necessary nor desirable.
[17] References in this judgment to unanimity refer to unanimity subject to any majority direction.[4]

The principle that a jury must be unanimous as to the essential ingredients of the offence

[18] It is a longstanding principle of our criminal law that a jury must be unanimous as to the essential ingredients of the offence.[5] But it is a principle of sometimes difficult application. In a particular case what are the essential ingredients upon which there has to be unanimity? Specifically, to what extent must the jury be agreed upon the factual basis on which they find the accused guilty?
[19] The offence of manslaughter in this case involves a death caused by an unlawful act. In certain circumstances, such as where death is caused by a continuous sequence of indistinguishable acts, it is not practical to direct the jury to identify and reach unanimous agreement as to which particular act caused the death. R v Ryder[6] was such case. Mr Ryder engaged in a continual beating of the victim, extending over two days. Death was caused by a brain injury occurring from the back of the head. His counsel submitted at trial and on appeal that the Judge should have told the jury that it had to be unanimously agreed as to what the precise cause of death was and also that Mr Ryder had the necessary intent for murder. This Court rejected that submission:[7]

In relation to a prolonged beating of this kind we cannot accept that submission. The evidence may not necessarily have enabled the fatal kick or blow to be singled out but there was ample evidence to justify the jury in finding that, however the fatal injury was inflicted, the accused must have meant at that time to cause bodily injury which he knew to be likely to cause death and must have been reckless whether death ensued or not. The prosecution was not bound to assign a particular kick or blow as causative; it was enough to point to a range of possibilities. Nor was the jury required to agree on the precise mode of death as long as it was satisfied that the accused must have caused it with the requisite intent. The summing up is in accord with that approach.

The Court noted the prosecution had properly not committed itself to any particular means and the summing up rightly did not require it to determine the precise means.

[20] In other cases juries have been required to be unanimous as to the factual basis of guilt where competing causes of death were put to them. In R v Chignell[8] the Crown put two cases: murder by asphyxiation in Auckland or by drowning some hours later in Taupo. The alternative routes were “separated by place and in time, and involved wholly different acts and, it seems likely, different intents on the part of each accused”.[9] This Court held the jury had to be clearly told it must be unanimous before it could convict on either alternative.[10] A verdict of guilty was not justified if (say) six jurors considered murder was established at Taupo and six that it was established at Auckland.[11] The two cases put by the Crown were essentially different.
[21] The English Court of Appeal decision of R v Brown[12] is often referred to in decisions of the English courts that grapple with this issue of jury unanimity as to the essential ingredients of the offence. Mr Brown was tried on counts of fraudulently inducing the investment of money. Each count contained particulars of a number of different statements relied on by the prosecution as constituting the inducement. The trial Judge directed the jury that it was sufficient that they were all agreed that there was a dishonest inducement. It did not matter that some were satisfied that one of the various statements was made out and others satisfied not about that statement being made out but that another was made out.
[22] The Court of Appeal allowed Mr Brown’s appeal. It stated:[13]

1. Each ingredient of the offence must be proved to the satisfaction of each and every member of the jury (subject to the majority direction).

2. However, where a number of matters are specified in the charge as together constituting one ingredient in the offence, and any one of them is capable of doing so, then it is enough to establish the ingredient that any one of them is proved; but (because of the first principle above) any such matter must be proved to the satisfaction of the whole jury. The jury should be directed accordingly, and it should be made clear to them as well that they should all be satisfied that the statement upon which they are agreed was an inducement as alleged.

Brown is accepted as correctly setting out the law on this topic in the United Kingdom[14] and has been applied by this Court[15] and in Australia.[16]

[23] Brown was considered in R v Mead[17] where the charges were wilfully ill-treating children and the particulars contained a number of different allegations of different forms of ill-treatment at different times. Thomas and Anderson JJ, in separate majority judgments, distinguished Brown on the essential basis that the form that ill-treatment might take was not an ingredient of the relevant offence on which unanimity was required, unlike the statements particularised in Brown. Thomas J further indicated that he would have been prepared to hold that Brown was wrongly decided if it was necessary. The majority held that unanimity on the particular allegations of ill-treatment was not necessary. The fact that particulars were provided did not make them ingredients of the offence.[18]
[24] Elias CJ applied Brown in her dissenting judgment in Mead. She restated the principle “so fundamental as to be generally assumed without need for authority” that a jury must be unanimous as to the essential ingredients of the offence.[19] She then turned to the question: what are the essential ingredients upon which there has to be unanimity?

[17] What elements are essential to criminal liability in the particular case and require jury unanimity is a practical question, not a technical one. It turns not only upon the legal elements of the offence but also the factual elements essential to the cases put for the prosecution and defence:

It is important to emphasise that the criteria [for establishing what are the “essential elements of the case”] are not directly concerned with the legal constituent elements of the offence charged but with the actual issues which are prerequisites to a guilty verdict in the particular circumstances of the individual case. (R v Leivers and Ballinger [1999] 1 Qd R 649, 662 per Fitzgerald P and Moynihan J.)

Elias CJ’s approach in this respect has been applied in Australia[20] and cited by this Court.[21]

[25] Elias CJ’s dissenting judgment was also cited by the Supreme Court in Mason v R[22] on which Mr King relied. The appellant in that case was tried on a count alleging two acts of assault, ear-pulling and punching. The Judge directed the jury that they could find guilt on either route, the ear-pulling or the punching. The Crown accepted, and the Court agreed, that the Judge erred in this respect and that the appeal had to be allowed on this basis alone.[23] In a brief analysis the Court stated:

[11] The third count in the indictment in this case alleged two acts of assault. It was therefore entirely possible that some members of the jury might find Mr Mason guilty on the basis of the ear-pulling only, while the other members might find him guilty on the basis of punching only, so that there would not be unanimity on either basis. As the Chief Justice said in R v Mead:

[20] Where a number of specific incidents or transactions or courses of conduct are included in the same count, there is a risk that all jurors will be satisfied of the proof of one, but not necessarily the same one.

[12] If that was the extent of the difficulty at trial likely to be created by the composite formulation of the count, it might have been curable by a direction that all jurors must agree on Mr Mason’s guilt of the same act (or acts) of assault. ...

[Citations omitted.]

[26] The remainder of the judgment was concerned with whether the division into two counts was the proper course. It was held that it was. The Court was satisfied not only that the two acts of assault were distinctly different in nature and seriousness so that division into two counts was the only proper course, but also that there was the practical possibility of a particular defence (use of reasonable force) to one of them.[24] In those circumstances, the defence was likely to be prejudiced by the composite nature of the count and the Judge’s failure to appropriately direct the jury.
[27] Mason was a different case from the present in that there was no element of the actus reus of the offence beyond the actual assaults, unlike this situation where a causative assault is only one of the elements of the offence (death from the causative assault being the other). There were in Mason two different assaults alleged, each individually capable of supporting a charge without such a further element.
[28] Similar reasoning is apparent in two English unlawful death cases. In R v Boreman[25] the prosecution proposed two alternative or cumulative routes: murder by inflicting injuries rendering the deceased unconscious and inhibiting his escape from a subsequent fire, or by fire setting. The English Court of Appeal accepted that there had to be unanimity as to the route which led to the death.
[29] In R v Carr,[26] as here, a bouncer was alleged to have killed a patron of a club while ejecting him. Ultimately the prosecution put the case on two alternative bases: manslaughter by either a karate kick by the accused or a punch by the accused. In terms of the defence identification was relevant to the first possible basis and self-defence to the second. The English Court of Appeal considered the Judge should have directed the jury that they must reach a unanimous decision on the deliberate act (if any) which they found proved, and on the unlawfulness of the act. Lord Bingham stated:[27]

There was in our judgment a real risk that some jurors might have found the defendant to have kicked the deceased and others found him to have delivered a punch, feeling themselves entitled to convict because the judge had told them that the defendant could be convicted on either basis.

[30] The Court continued:[28]

We wish to make it plain that we are not seeking to lay down any general rule. There will often be minor differences between the facts alleged and the evidence given by various witnesses, and there is no need for agreement between all jurors on fine factual differences. Here, however, the difference between the two forms of assault did not depend on fine factual differences, but on a stark difference in the evidence of witnesses describing the two events, those two forms of assault giving rise to very different defences.

[31] The same approach was adopted by Steytler P in Fermanis v Western Australia where he observed in relation to fraud charges with multiple particulars any of which could have sustained a guilty verdict:[29]

There was consequently a number of routes by which that essential element of the offence could be established. In my opinion, these routes were not merely evidentiary. Rather, the fact to be found, namely the particular form of deceit or fraudulent means used, is an essential ingredient of the offence and the jury was required to be unanimous in finding that ingredient proved.

Unanimity in the present case

[32] The conduct alleged to have caused Mr Heagney’s death fell into two separate sequences, either or both of which, on the prosecution case, were sufficient to establish Mr King’s guilt:

• (a) That Mr King unjustifiably applied a carotid hold to Mr Heagney rendering him incapable of breaking his fall when he was subsequently dropped or thrown, this being causative of Mr Heagney’s death; and/or
• (b) That Mr King deliberately and unjustifiably dropped or threw Mr Heagney, this being causative of Mr Heagney’s death.

[33] The Judge told the jury it could proceed down either or both of the different routes. She stated:[30]

You do not have to be unanimous on all the facts which satisfy each of you of the answer to any question. So you can answer, say, [the question has the Crown proved beyond all reasonable doubt that Mr Heagney’s death was caused by an “assault” by Mr King] by different routes or reasons to each other. The important point is to be unanimous on what the answer is.

[34] And later:

[32] It is for you to assess the evidence. But if, in the context of all the evidence you have heard, you consider that this is a reasonable possibility, the release was accidental, then Mr King has not assaulted Mr Heagney in the act of letting him go. That is because that act lacks an intention to apply force directly or indirectly. In this scenario you would have to go back a step and consider whether earlier actions by Mr King caused Mr Heagney’s death. Relevantly here is the Crown’s case that a headlock was used and that headlock rendered Mr Heagney unable to fend for himself when released from the hold. If you find that this is what occurred then there would be an assault, namely the headlock, which had caused Mr Heagney’s death.

[33] So there are a number of scenarios. As I said it is possible to answer [the question has the Crown proved beyond all reasonable doubt that Mr Heagney’s death was caused by an “assault” by Mr King], whether “yes” or “no”, by different routes provided you are all unanimous that the answer is either yes or no.

[35] Defence counsel challenged her on this direction. She considered their submissions and in a Minute on the issue referred to leading authorities and explained why she considered the directions to be correct. She stated:[31]

Mr King would be guilty if the jury were unanimous that this removal involved intentional force of a dangerous kind and there was no reasonable possibility that either of the two potential justifications applied. If the jury had different views as to the facts on which they were each satisfied that the elements were proven that did not change the nature of the offence, Mr King’s culpability for that offence or the elements of which the jury all needed to be satisfied.

[36] On the Judge’s direction the possibility arises that half the jury may have been persuaded that the first sequence amounted to manslaughter and the second did not, and the other half of the jury may have been persuaded that the second sequence amounted to manslaughter and the first did not. Half the jury might have thought that self-defence applied to the first sequence but that the drop was deliberate, and the other half of the jury that the drop was accidental but the application of the carotid hold unjustified and causative of death. Either way the jury would not be unanimously satisfied beyond reasonable doubt of a sequence establishing guilt. The Crown would have been able to discharge the onus on it without unanimity on either sequence.
[37] With the possibility that less than 12 jurors were satisfied as to Mr King’s culpability on either sequence, it cannot be said that there was a common foundation for the verdict. As was stated in Archbold[32] in respect of the English position:

... there is a risk that, notwithstanding that all are agreed on the defendant’s guilt, some members of the jury might, on the findings of other members of the jury, have concluded that the defendant was innocent ...

[38] The situation can be distinguished from that in Ryder where there were a series of indistinguishable acts, one of which caused death and where the Crown did not seek to distinguish between the competing causative acts. It is then not open to the defence to raise separate defences in relation to the acts.
[39] This is not a case alleging a broad offence as in Mead where the essential ingredient was a course of conduct, of which the particulars could be seen as various evidentiary bases. It may be that on these facts the charge could have been laid under s 155 of the Crimes Act 1961 (omitting without legal excuse to discharge a duty of care in doing a lawful act the doing of which is or maybe dangerous to life) or perhaps under s 157, the Crown’s original count, but we did not hear full argument on this and do not express a final view on the matter. The unanimity issue has also been approached somewhat differently where the accused is charged both as a party and as a principal.[33] Different considerations may also arise when the competing causes of death are part of an indivisible single transaction animated by the same intent.[34]
[40] Such problems did not arise in this trial. There was one undisputed and immediate cause of death, the release. But the Crown chose to rely on two different acts of assault each said to be causative of death. The first was the application of the carotid hold which was said to have rendered Mr Heagney incapable of breaking his subsequent fall. The Crown argued that this was unjustified and operated as a substantial and operative cause of his death. Mr King could be liable on this basis notwithstanding that the subsequent release may have been accidental. That is, the jury were able to find Mr King guilty of manslaughter on the basis of his unjustifiably applying a carotid hold though no culpability may have attached to the immediate cause of Mr Heagney’s death, his release on to the footpath. The second act of assault relied on was the release of Mr Heagney on to the footpath itself. The Crown argued that this was deliberate (there was no question that it operated as a substantial and operative cause of his death). Mr King could be liable on this latter basis notwithstanding that he may have been justified in earlier applying the carotid hold. So the defences applying to each act of assault relied on by the Crown were quite distinct.
[41] The jury could have been directed that they were required to be unanimously agreed on one or other or both of these essential bases to find Mr King guilty. But such a direction was not given. The failure to so direct may have had the effect of denying Mr King, in relation to one or other or both of the two acts of assault relied on, unanimous determination of the presence or otherwise of the particular defences he sought to advance.
[42] The Crown argues that the assault was a “continuing” one that it is artificial to separate. We do not accept this argument. It is not determinative that the two acts were proximate in time. That factor was not critical in Mason or Carr.[35] The Crown’s argument that a requirement of unanimity artificially separates two acts one following the other faces the difficulty that the Crown itself advanced its case at trial on expressly alternative or cumulative bases and the trial Judge directed the jury in the same terms. It was practical and open to direct the jury to unanimously determine guilt on either or both bases.
[43] Therefore, we conclude that in summing up the Judge should have directed the jury that they had to either unanimously determine that the carotid hold was an unlawful act and a substantial and operative cause of death (the first sequence) or that the releasing of Mr Heagney was an unlawful act and a substantial and operative cause of Mr Heagney’s death (the second sequence) or both. They had to be unanimous as to guilt on one or the other basis, or both, but should not have been permitted to disagree.
[44] The conviction will be quashed on this ground and it is not necessary to determine the other grounds of appeal. Our focus has been on the unanimity direction, rather than on whether there should have been separate counts. Nevertheless, it is appropriate for some observations to be made on that issue.

Separate counts

[45] Section 329(6) of the Crimes Act 1961 provides that: “Every count shall in general apply only to a single transaction.” It was observed in Mason v R:[36]

The qualification “in general” and the relatively indefinite word “transaction”, which can encompass both a single event or a course of conduct, recognise the difficulty of application of any precise rule to the charging of the many different fact situations in which acts of offending may occur. ... It is necessary that distinctly identifiable acts of alleged offending be the subject of separate charges where the accused may be prejudiced either at trial or on sentencing if they are combined in a single count.

[46] In Mason, as we have observed, there were two acts each capable of constituting an assault alleged in a single count, namely ear-pulling and punching. Although they took place within a short period they were of a distinctly different nature and seriousness so that division into two counts was held to be the only proper course. The Court repeated, however, its earlier endorsement of the practice of not charging as separate offences a continuing course of conduct which it would be artificial to characterise as separate offences.[37]
[47] The crime of manslaughter is different in its nature from the crime of assault which was the charge in Mason. Where there is an assault it is the intentional application of force with the requisite intent that completes the offence. If Mr King had been charged only with assault it would have likely been that separate assault charges were appropriate, as each alleged instance was self-contained. But he was not. He was charged with manslaughter which centred on the death of Mr Heagney. There was one death, the death being the distinguishing element. Given the sequential nature of the events and one immediate and uncontested cause of death, the striking of the head against the pavement, a single count could suffice. The alleged factual bases for guilt were not mutually inconsistent. The position may be contrasted with that in Chignell where it was possible for the Crown to lay alternative counts. To have laid two counts in this case could have resulted in two convictions for manslaughter in relation to the same death.
[48] It is therefore our tentative view that one count and an appropriate direction as to unanimity on the essential ingredients was enough, but we do not decide the point.

Result

[49] The appeal is allowed. The conviction is quashed and a retrial is ordered.

ELLEN FRANCE J

[50] I have had the opportunity of reading in draft the reasons for judgment of Asher J. I take a different view and would dismiss the appeal. My reasons can be expressed shortly.
[51] Mr Heagney died as a result of head injuries he sustained when he fell and hit his head on the ground. The Crown case was that Mr Heagney was either dropped deliberately or dropped accidentally in circumstances where he could not protect himself because of a preceding unlawful act done by the person who dropped him, namely, Mr King. Under either scenario, what Mr King did amounted to manslaughter. On either scenario the manslaughter related to the same act, that is, dropping Mr Heagney to the ground. Further, either scenario is preceded by Mr Heagney, in an affected state of consciousness, being carried down the stairs for the purposes of eviction. In these circumstances, I consider Mallon J was correct to direct the jury that they need not be unanimous as to whether Mr Heagney was dropped deliberately or accidentally.
[52] It is important to note that the sequence of events alleged to have occurred here is identical under either scenario, namely, Mr King applies a carotid hold, carries Mr Heagney and then drops Mr Heagney. There is not, for example, any issue as to whether the application of the carotid hold, if there was one, was deliberate. Rather, the only issue was whether it was applied in self-defence.
[53] These matters distinguish this case from those referred to in the majority judgment in which unanimity was seen as necessary.
[54] Since the appeal is to be allowed, I record that I am not convinced that an unlawful act flowing from the carotid hold is the correct analysis. Whether the carotid hold was lawful or not because it was done in self-defence does not appear to be critical. What matters is that Mr King decided to carry a person with affected consciousness down the stairs for the purposes of eviction. In doing so, he had a responsibility to use care. If Mr King deliberately threw a semi-conscious man to the ground and death ensued, that would be manslaughter by an unlawful act. If he accidentally dropped him, the issue is whether that act occurred in circumstances amounting to gross negligence. It would remain my view that unanimity on these options is not required.
[55] In the circumstances, it is not necessary to deal with any of the other matters raised on the appeal and I do not do so.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v King HC Blenheim CRI-2009-009-17816, 19 November 2010 at [7].

[2] R v King HC Blenheim CRI-2009-009-17816, Minute of Mallon J, 14 Dec-2010.
[3] Mason v R [2010] NZSC 129, [2011] 1 NZLR 296.
[4] See s 29C of the Juries Act 1981.

[5] R v Mead [2002] 1 NZLR 594 (CA) at [14] per Elias CJ; R v More (1988) 86 Cr App R 234 (HL) at 252 per Lord Ackner.
[6] R v Ryder [1995] 2 NZLR 271 (CA).
[7] At 273. See also R v Lee [2006] 3 NZLR 42 (CA) at [140]–[141].
[8] R v Chignell [1991] 2 NZLR 257 (CA).
[9] At 265.
[10] At 266.
[11] Rejecting the Crown submission to the contrary, see 265.
[12] R v Brown (1984) 79 Cr App R 115 (CA).
[13] At 119.

[14] PJ Richardson (ed) Archbold: Criminal pleading, evidence and practice (Sweet & Maxwell, London, 2012) at [4–451]. See also R v Mead [2007] 1 NZLR 594 (CA) at [25].
[15] Carlos v R [2010] NZCA 248 at [33].
[16] Fermanis v Western Australia [2007] WASCA 84[2007] WASCA 84; , (2007) 33 WAR 434 at [71].
[17] R v Mead [2002] 1 NZLR 594 (CA).
[18] At [77].
[19] At [14].
[20] Fermanis v Western Australia at [68].
[21] Carlos v R at [15]-[16].
[22] Mason v R [2010] NZSC 129, [2011] 1 NZLR 296.
[23] See [7]–[8] and the transcript at 2.
[24] At [13]–[15].
[25] R v Boreman [2000] 1 All ER 307 (CA).

[26] R v Carr [2000] 2 Cr App R 149 (CA).
[27] At 158.
[28] At 158–159.
[29] At [69].
[30] At [21].

[31] R v King HC Blenheim CRI-2009-009-17816, Minute of Mallon J, 14 Dec-2010, at [6].

[32] Citing R v K (Robert) [2002] EWHC 409; [2008] EWCA Cam 1923, [2009] 1 Cr App R 24 at [11].
[33] See R v Shaw [2009] NZCA 232, (2009) 24 CRNZ 501.

[34] See for example Attorney-General’s Reference (No 4 of 1980) [1981] 1 WLR 705 (CA) and Thabo Meli v R [1954] 1 WLR 228 (PC).
[35] See also R v Smith [2007] EWHC 1836; [1997] 1 Cr App R 14 (CA).
[36] Mason v R [2010] NZSC 129, [2011] 1 NZLR 296 at [9].
[37] At [10] referring to R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1 at [8].