IN THE Court of appeal OF new Zealand
	
CA815/2011
[2013] NZCA 406

BETWEEN	
CHRISTOPHER RONALD HAZLEWOOD
Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
13 August 2013	

Court:	
Ellen France, Rodney Hansen and Mallon JJ	

Counsel:	
M A Stevens for Appellant
J E Mildenhall for Respondent	

Judgment:	
29 August 2013 at 3 pm	

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)
Introduction
[1]	Mr Hazlewood appeals against his convictions for burglary and theft, following a District Court jury trial in November 2011.  The convictions relate to an incident in the early morning of 16 December 2003.  Mr Hazlewood was only charged following information first provided to the police by Mr Turner, an alleged co-offender, on and after 23 June 2008.  For his part in the alleged offending, Mr Turner was convicted on 17 September 2009.  Mr Turner was the key Crown witness at Mr Hazlewood’s trial. 
[2]	Mr Hazlewood’s appeal is on four grounds:
(a)	the delay in bringing these charges caused unfair prejudice to Mr Hazlewood by seriously impairing his ability to defend the charges;
(b)	a dictaphone recording of Mr Turner’s initial allegations made to the police on 23 June 2008 was unavailable and this prejudiced Mr Hazlewood’s defence because the typed record was incomplete;
(c)	Mr Turner’s evidence was so unreliable that it was unsafe to allow the charges to go to the jury; and
(d)	failure of the trial judge, Judge MacAskill, to give a “tripartite” direction in relation to Mr Hazlewood’s evidence gave rise to a risk of miscarriage of justice. 
Background
Alleged circumstances
[3]	The convictions relate to an incident when Mr Hazlewood and Mr Turner were both living in Hampden, Otago.  The Crown’s case about that incident was as follows.  On the night of 15 December 2003 Mr Turner accompanied Mr Hazlewood on a drive from Hampden to Cromwell where Mr Hazlewood intended to pick up some machinery.  On the drive to Cromwell they passed a Works site near Kyeburn.  On the return trip to Hampden they stopped at the Works site they had earlier noticed.  Mr Hazlewood and Mr Turner stole approximately 500 litres of diesel, batteries, an exhaust pipe and a set of keys from the site.  They also broke into a caravan on the site and stole two batteries, two fuel containers, engine oil and a chilly bin.  The total value of the property taken and the damage caused was estimated to be $2,500.
[4]	The theft of these items was reported to the police on 16 December 2003.  The police visited the site that day.  Photographs were taken and a blood sample was obtained from the broken door of the caravan.  No suspects were identified.
Mr Turner speaks to police
[5]	Over four years later, on 23 June 2008, Mr Turner spoke to the police at the Palmerston Police Station.  The exact circumstances of how Mr Turner came to be there is not clear, except that Mr Turner had been “stopped” by the police on a night preceding 23 June 2008 and Mr Turner mentioned that he had “done stuff” with Mr Hazlewood and others.  When asked by the police on 23 June 2008 why he wanted to talk to them, Mr Turner said “because he’s [ie Mr Hazlewood’s] done stuff you guys need to be aware of”.
[6]	At this time Mr Turner gave an account of the incident giving rise to the charges.  He did not mention that he had also been involved in the taking of the property.  Following this, Mr Turner gave the police a blood sample.  This matched the blood sample taken from the caravan door.  As a result, on 18 December 2008 Mr Turner was interviewed again.  The police advised Mr Turner of the blood test result.  Mr Turner admitted that he had been involved.  He gave further details about the incident.  He said that he helped Mr Hazlewood because Mr Hazlewood had said if he did not help, he would be walking home.
Mr Turner’s convictions
[7]	Mr Turner was charged with burglary and theft relating to this incident.  He pleaded not guilty and appeared unrepresented in the District Court on 17 September 2009.  His defence was that he had not willingly participated in the offending, but was acting under duress from Mr Hazlewood.  Mr Turner claimed that Mr Hazlewood told him that if he would not help, Mr Hazlewood would be leaving him there.  Mr Turner said that he replied, “If I gotta walk, I gotta walk”, but that Mr Hazlewood then said, “Well you know you’re not gonna have a house when you get home, it’ll be burnt down.  You know I’ve got mates that’ll do it”.  Mr Turner claimed to be “absolutely terrified”.  Mr Turner’s defence was rejected.  He was convicted and sentenced to 100 hours’ community work.
Charges brought against Mr Hazlewood
[8]	Mr Hazlewood was first questioned about the offending on 19 October 2009.  He provided a statement in which he denied the charges.  He said that he understood that the charges related to, amongst other things, an exhaust and batteries.  He said he recalled buying both an exhaust and tractor from Mr Turner some years ago for his tractor.  He said that the exhaust was still on the tractor when he sold it to a third party some years ago.  
[9]	Charges were brought against Mr Hazlewood on 6 November 2009.  For the purposes of Mr Hazlewood’s trial the police obtained a statement from Mr Turner (in question and answer format) on 11 November 2011.  This statement provided some additional details about the incident.  Mr Turner denied selling an exhaust and batteries to Mr Hazlewood.  At this time he was not asked again to explain why he participated in the theft/burglary at the Works site.  
[10]	Prior to the trial Mr Hazlewood applied for a stay of proceedings on the basis of delay.  He also sought, in the alternative, a discharge under s 347 of the Crimes Act 1961.  The discharge was sought on the basis that the Crown’s case, being dependent on Mr Turner’s evidence, was not sufficient to prove the charges beyond reasonable doubt.  These applications were dismissed.
Mr Hazlewood’s trial
[11]	The trial took place on 22 November 2011 (an earlier trial date was vacated at Mr Hazlewood’s request).  At trial the prosecution called evidence from:
(a)	Mr Reynolds:  He was the foreman at the Kyeburn Works site on 15/16 December 2003.  His evidence related to the vehicles and the caravan that were at the site on 15/16 December 2003 and the items of property taken.
(b)	Mr Turner:  He gave his account of the offending and Mr Hazlewood’s involvement in that offending.  In this account he said that he did not intend to help Mr Hazlewood but Mr Hazlewood said “you’re helping” in an “aggressive” manner, and it was “like veiled threats”.
(c)	Constable Low:  He was stationed in Hampden from 2005.  He was present with Constable Witehira when Mr Turner first told the police in June 2008 that Mr Hazlewood had stolen property from the Works site.  He gave evidence of his enquiries.  
[12]	Mr Hazlewood elected to give evidence in his defence.  He denied that there had been any trip to Cromwell where he and Mr Turner had stolen property at a Works site.  He accepted that on occasion he went on drives to collect scraps from vehicles which he would on-sell.  He accepted that he had a Toyota Land Cruiser with a flat deck on which he carried 44 gallon drums from time to time, as described by Mr Turner.  He also accepted that he had several diesel-powered vehicles, some of which were “wrecks” but the “rego was still live”.  He accepted selling a tractor to a Mr John Pile but said this was well before the date the registration for the tractor was changed into Mr Pile’s name (27 January 2009).
[13]	Mr Hazlewood also called evidence from Ms Lawrence.  She was living with Mr Turner in December 2003.  She gave evidence of being woken by Mr Turner in the early hours of 16 December 2003, with Mr Turner telling her that he had “scored” stuff.  She also said that Mr Turner had put a big tank on her property into which he could put diesel.  It was put to Ms Lawrence that this was contrary to Mr Turner’s evidence to which she replied that Mr Turner was a “born liar”.  She also said that Constable Low told her that firearms charges were dropped against Mr Turner because Constable Low would “rather get Chris [Mr Hazlewood] then Aaron [Mr Turner]”, a comment which Constable Low said he did not make.
[14]	The jury returned guilty verdicts and Mr Hazlewood was accordingly convicted.  He was sentenced to 200 hours’ community work and ordered to pay reparation of $2,500.
Ground 1:  delay
[15]	There was a delay of four and a half years between the incident which gave rise to the charges and the time at which Mr Turner first spoke to the police.  A further 16 months elapsed before Mr Hazlewood was charged.  This delay of over six years is said to have prejudiced Mr Hazlewood’s ability to defend the charges.
[16]	When there has been delay between the alleged event giving rise to a charge and the laying of a charge, “the central question is whether a fair trial can still take place in the particular circumstances.”  There may be cases where a stay is necessary because the delay has been so exceptionally long that a fair trial is impossible.  But ordinarily passage of time alone will not give rise to prejudice, to the extent that there is a real risk that a defendant will not receive a fair trial, even though there is “an obvious inherent problem of memory for witnesses and accused alike.”  A real risk that a defendant will not receive a fair trial may arise if, for example, important defence witnesses are no longer available or the defence can point to some other specific prejudice.  
[17]	In this case it is submitted for Mr Hazlewood that a six year delay is significant in relation to a property offence.  Counsel for Mr Hazlewood submits that this contrasts with delays arising when a complainant in a sexual violation case does not make a complaint for a number of years, or where there is a lack of evidence in serious crimes against a person (such as in homicide cases), where the courts have accepted much longer delays.  We do not agree that such a distinction should be made as a matter of course.  In relation to the charges brought against Mr Hazlewood the question is whether there was a real risk that he did not receive a fair trial because of the delay.
[18]	The prejudice claimed was that, because of the delay, Mr Hazlewood could not say what he had been doing on 15/16 December 2003, he could not establish if anyone was selling large items of machinery in Cromwell at that time, and he could not go to garages on the route from Hampden to Cromwell and back to refute that he had refuelled on this long trip.  It was also claimed that prejudice arose because Constable Low had not inspected Mr Pile’s tractor to determine if the stolen exhaust pipe was on the tractor.  Constable Low’s evidence was that this had not been done because “there was no way I could have identified that six years down the track”.
[19]	Counsel for Mr Hazlewood accepts that where evidence is lost, the defence needs to show it would have been of real assistance to the defence.  She submits that any evidence on these matters would have been very effective in establishing Mr Hazlewood’s defence.  Without such evidence it is said that Mr Turner and Mr Hazlewood may have appeared to the jury to be on an equal footing.  In other words, the delay prevented evidence being obtained that could have created a reasonable doubt.
[20]	We do not accept this submission.  We agree with the District Court Judge who declined to order the stay (Judge Maze) that the claimed prejudice was speculative.  That is because it is not known whether any of the enquiries (if able to be made), would have supported Mr Hazlewood’s defence.  They may instead have supported Mr Turner’s account.  In relation to the tractor in particular, inquiries may have revealed that the stolen exhaust pipe was in fact on that tractor.  But that would be consistent both with Mr Turner’s account that Mr Hazlewood had stolen the exhaust pipe and used it on the tractor, and Mr Hazlewood’s account that Mr Turner had sold it to him and he had put it on the tractor.
[21]	In the absence of evidence about these matters the jury needed to make an assessment of Mr Turner’s credibility and also of Mr Hazlewood’s credibility.  The absence of evidence of the kind referred to by Mr Hazlewood’s counsel was potentially in Mr Hazlewood’s favour because the prosecution had the burden of proof.  A reasonable doubt about Mr Turner’s credibility would have meant an acquittal.
[22]	It is important that a judge direct a jury as to any difficulties that may have arisen because of delay.  In this case the Judge did that.  He said:
Now, you are obviously fully aware that there has been a delay, a lapse of time, since this burglary and this theft that occurred and is alleged against the accused, and I need to speak about the lapse of time.
The evidence given by Turner about the alleged conduct of the accused eight years ago, may be unreliable because of the lapse of that time.  Be cautious in deciding whether to accept that evidence and deciding what weight to give to it.
Take into account the time that has passed since the events, and any other factors that might affect your assessment of the reliability of the evidence, such as (and there may be other things that occur to you):
•	The presence or absence of any confirmatory evidence.
•	The possible loss of evidence or the opportunity to obtain evidence.
•	The possibility of error or distortion.
•	The possibility that, by reason of the delay, the defence might have been disadvantaged.
•	The fact that the accused was not told of the allegations until October 2009.
So, the point made by defence counsel in his address to you, as I recall it, is, well, he was deprived of the opportunity to see if he could establish an alibi, that is, “I wasn’t there on the 15th and 16th of December.  I was somewhere else doing something else, and I can call witnesses to show it”.  So, it is for you to consider whether the lapse of time is material here, and what weight you should give it in assessing the evidence.
[23]	That direction was an appropriate one.  This appeal ground is therefore not made out.
Ground 2: unavailable evidence (the dictaphone recording)
[24]	When Mr Turner spoke to the police on 23 June 2008 the conversation was recorded by the police on a dictaphone.  As part of the disclosure to the defence, the police provided Mr Hazlewood’s trial counsel with a transcript of that recording.  The transcript provided appeared to have a gap on page three.  It was also not clear that it was a transcript of the full recording.  That was because it appeared that there had been some discussion that preceded the point at which the transcript commenced and it ended abruptly.
[25]	Prior to trial Mr Hazlewood’s counsel enquired with the police as to whether the transcript was complete.  In response the police provided a further transcript of the conversation.  This version of the transcript contained three additions.  The first addition was at the beginning where the following was recorded:
WITEHIRA	Right, Aaron.
TURNER	Yeah.  Um, but yeah, as I was saying, I, I, those are the visits that I get.
WITEHIRA	Yep.
TURNER	Now if you guys aren’t on duty, it’s gonna take the Oamaru Police, I mean even with lights and shit, it’s gonna take ‘em 20 minutes to get to my house.
WITEHIRA	Right.
TURNER	I am telling you straight; I will not call the dogs off until the Police get there.
WITEHIRA	Mmm.  Alright.  Well..
TURNER	(Sniggers) I won’t do anything physical...
WITEHIRA	(one word response – inaudible)
TURNER	... because um, obviously um, I’ve got a firearms licence; that’s more precious to me than them idiots.
WITEHIRA	Yeah.
TURNER	I need it for work.
WITEHIRA	Yeah.
TURNER	So, I’m not going to do anything stupid, but I’m not gonna call the dogs off until the Police get there (sniggers)
[26]	The second addition was on page three where the following was recorded:
TURNER	Um, I’d known he was dodgy obviously because of the rumours in Hampden and stuff like that.  Everybody knows he’s dodgy, so, I’d been warned.
WITEHIRA	Mmm.  What rumours?  What rumours had you heard then?
TURNER	Ah, oh, you know, don’t have any dealings with Chris, he’s dodgy, he’ll rip you off, you know, he’s a thief and you know, stuff like that.
[27]	The final addition was at the end of the transcript.  The first transcript finished abruptly with Mr Turner saying “All this is in ...” and Constable Witehira had cut in with “Yep, yep”.  This transcript added the rest of Mr Turner’s response, which was as follows:
TURNER	... the period of that time.  I was with him again, um on the way to Christchurch.  Just north of Christchurch um, he wanted, um I was with him cos I was driving a truck that he was driving up there cos ah, he doesn’t have an HT licence and I do.
[28]	As we understand it, after that further transcript was provided no further disclosure was sought.  The recording was not requested and no information was sought about what else (if anything) had been discussed with Mr Turner at this time, nor as to how Mr Turner came to be having this conversation with the police.
[29]	At trial Constable Low was briefly questioned about the conversation with Mr Turner by counsel for Mr Hazlewood.  In particular he was asked if Mr Turner was aware that the conversation was being recorded and that it was a confidential discussion.  Constable Low confirmed those matters.  He was also asked what it meant when the police say to someone that a discussion is confidential.  The Constable said it meant that the information may or may not be used and that Mr Turner would be aware that the information “won’t be passed on to certain parties”.  Constable Low was not asked what else was discussed with Mr Turner, nor how it arose that Mr Turner was speaking to the police, nor whether Mr Turner received any benefit from providing the information to the police.
[30]	After trial present counsel for Mr Hazlewood asked for a copy of the dictaphone recording.  The police advised that the recording had been erased and recorded over as soon as the recording was transcribed.  In these circumstances, counsel for Mr Hazlewood submits that it is not possible to test the accuracy of the transcription nor to determine what else Mr Turner may have been saying about Mr Hazlewood. For example it is said that if Mr Turner made other allegations against Mr Hazlewood, were they allegations that the police did not see fit to pursue and, if so, was that because the police had investigated the allegations and determined that they were untrue?  It is also said that the missing portions may have disclosed motives for Mr Turner to lie about Mr Hazlewood.  
[31]	Counsel submits that because the jury did not have the full account which would assist in determining Mr Turner’s credibility, Mr Hazlewood did not receive a fair trial.  She submits that it is not correct to characterise this as a situation of “lost” evidence (as the Crown submits).  She says that this was a situation where relevant evidence to a prosecution was erased when it ought to have been preserved and disclosed to the defence.  She says that this non-disclosure is so significant that it should be remedied by quashing the verdicts and not ordering a new trial.
[32]	In our view nothing turns on whether what occurred is viewed as non-disclosure or the failure by the police to preserve evidence.  Either way the evidence became unavailable to the defence and in considering the consequences of that the same considerations are relevant.  In R v Harmer (a case where the defence contended the prosecution had failed to preserve and examine evidence and to retain a tape of a 111 call in the context of a murder investigation) the two relevant considerations were said to be whether the evidence was lost because of acts or omissions by the police involving bad faith, and whether it was probable that the lost evidence would have been of real assistance in the defence.  These considerations were endorsed in R v Dawson.  That case involved charges of theft from a till at a private zoo.  Similar to the submission advanced for Mr Hazlewood here, the defence appealed on the grounds of inadequate prosecution disclosure, through the failure to retain all the zoo’s till and EFTPOS records for the period that the defendant was employed.  Applying the R v Harmer approach the appeal in that case was unsuccessful.
[33]	It is the case that if the recording had been available, defence counsel would have been able to check the accuracy of the transcript.  However there is no reason to suspect that, in so far as it is transcribed, it is inaccurate.  In the context of a confidential discussion, the initial editing of the transcript for the purposes of providing disclosure to the defence appears to have been an attempt to confine the transcript strictly to the incident at issue here.
[34]	To the extent that the defence did not have details about anything else that Mr Turner may have discussed, the time to pursue that was pre-trial (through further disclosure requests) or potentially by further questions of Constable Low in cross-examination.  As matters stand it is speculative as to whether there was anything in the recording that would have assisted the defence.  In terms of R v Harmer it has not been established that the unavailable evidence would have been of real assistance to the defence.
[35]	The other relevant factor discussed in R v Harmer is whether there was any bad faith on the part of the police.  Here there is nothing to suggest any bad faith in erasing the recording.  This was not a formal interview of a witness.  It was a confidential discussion between the police and a person providing information of potential interest to the police.  A transcript of that recording was made and the relevant portions (as assessed by the police) were made available to the defence.  When defence counsel queried the deletions, further disclosure was made.
[36]	This ground of appeal is therefore not made out.
Ground 3: reliability of Mr Turner’s evidence 
[37]	The next ground of appeal advanced is that the Crown’s case depends on Mr Turner’s evidence, and it is said that he was so unreliable that no jury could reasonably have been satisfied beyond reasonable doubt of Mr Hazlewood’s guilt.  It is accepted that no application for a discharge was made before the jury were directed to deliberate when it might have been, but it is said that this Court can remedy this.
[38]	Mr Turner’s unreliability is said to arise because:
(a)	he delayed in making the complaint;
(b)	his account of events is “riddled with inconsistencies and contradictions”;
(c)	he had a motive to lie about Mr Hazlewood – at his defended hearing on 17 September 2009 Mr Turner said that Mr Hazlewood had wronged his friend and he did not want him to get away with this, which is said to contrast with saying to the police that he wished to hold Mr Hazlewood accountable;
(d)	he has a history of theft and burglary;
(e)	he accepted that in the past he had been a compulsive liar (evidence supported by Ms Lawrence).
[39]	All of these matters were, however, before the jury.  The defence closing address focused on Mr Turner’s unreliability.  The closing address discussed aspects of Mr Turner’s evidence which it was said should give the jury a reasonable doubt.  These were that:
(a)	Mr Turner would go on such a long road trip (four and a half hours each way) in the middle of the night when Mr Hazlewood had supposedly threatened him on previous occasions;
(b)	there were some inconsistencies in his various statements (such as whether he entered the caravan) and that this was because he is “just wanting to nark” to “protect his own skin”;
(c)	he had only admitted his own involvement when faced with the match of his DNA with the sample taken from the caravan door;
(d)	he changed his story about what Mr Hazlewood had said to make him assist in the burglary/theft and the jury might think he committed perjury at his own defended hearing;
(e)	Mr Turner was wrong about the trucks that were on-site;
(f)	Mr Turner gave an “obvious” response when questioned why Mr Hazlewood’s DNA or fingerprints were not found at the site (ie that Mr Hazlewood was wearing black gloves);
(g)	Mr Turner could not remember what machinery Mr Hazlewood collected from Cromwell;
(h)	Mr Turner said that Mr Hazlewood was going to go to Invercargill after returning to Hampden (which was too long a journey to be likely);
(i)	Mr Turner had a motive to lie from the outset and, even though he had already been convicted by the time of Mr Hazlewood’s trial, Mr Turner needed to maintain his story at Mr Hazlewood’s trial or risk a perjury conviction; and
(j)	Mr Turner was a dishonest man as shown by his list of dishonesty offences.
[40]	The Judge spent some time in his summing up directing the jury in relation to Mr Turner.  In addition to the direction regarding the lapse of time (set out above), the Judge instructed the jury that they needed to assess Mr Turner’s truthfulness and reliability.  He told them to consider Mr Turner’s claims, his relationship with Mr Hazlewood, his own involvement in the burglary and theft, any motives he had to give false evidence and any other evidence that independently supported or contradicted Mr Turner’s account.  He went on to deal with these matters in further detail.
[41]	The Judge directed the jury that the guilty verdicts for Mr Turner were not evidence of Mr Hazlewood’s guilt.  He directed the jury that Mr Turner’s criminal convictions for dishonesty were relevant factors in assessing Mr Turner’s truthfulness.
[42]	On the topic of Mr Turner’s motive to lie the Judge directed as follows:
You will be alert to the fact that the question of Turner’s possible motive to give false evidence is important in this case.  I want to be clear about this.  The law recognises that a person who has admitted committing a crime may have a motive to give false evidence implicating another in the commission of the crime.  Turner has implicated the accused in the burglary and the theft, which he admitted.  You should take into account that Turner may have a motive to give false evidence against the accused.  As such evidence may be unreliable, you must be cautious in deciding whether to accept that and what weight you give it.  You must be cautious before finding the accused guilty upon the basis of evidence of a kind that may be unreliable.
That does not rest there – that is my general caution to you about that kind of evidence.  But the issue has been expressly addressed by counsel for the defence.  I want to emphasise that the defence does not have to prove that Turner had any particular motive to give false evidence against the accused.  I have told you previously that the defence does not have to prove anything, and in particular they do not have to prove that Turner had a motive to give false evidence, what that motive was.  However, as I have said, the defence does suggest that Turner was motivated to give false evidence at his trial because he wanted to exonerate himself by falsely showing that he acted under duress by the accused and, the defence says, he has continued the story even though he has now been convicted and sentenced.  He wanted to get the accused into trouble to save his own skin.  So, to be clear, as I understand defence counsel’s argument, having committed himself to giving false evidence at his own trial about the accused, to prevent being prosecuted for perjury in that trial, he has maintained the same story in this trial before you.  Those are the arguments raised by the defence; it is for you to consider them, and the counter arguments that are available.
[43]	On the topic of the alleged inconsistencies in Mr Turner’s evidence, the Judge directed the jury to consider those matters and to determine whether they were inconsistencies and whether they were material.  He noted that the jury had all the records of what Mr Turner had told the police on previous occasions and he went on to say:
You are entitled to take those documents into account in deciding whether there are any material inconsistencies, as the defence suggests, and whether or not what Turner told the police has been reasonably consistent, as the Crown suggests.  It is for you to sort out.
Whether the earlier conversation or statements help you to decide whether Turner’s evidence is true is again for you to assess.  The earlier statements are part of the evidence in the case, and you can take them into account, not just as to the truth of Turner’s evidence, but also as evidence of the truth of what was said in them.
[44]	The assessment of Mr Turner’s reliability and credibility was “quintessentially” a jury function.  The Judge’s summing up directed the jury to all the points that were relevant to that assessment.  It was for the jury to consider whether there were the inconsistencies alleged, whether Mr Turner’s evidence may have been affected by any motive to lie and whether his criminal history and the evidence that he was or is a liar raised a reasonable doubt about Mr Hazlewood’s involvement.  This was not a case where Mr Turner’s evidence was so “manifestly discredited or unreliable” that convictions on the basis of that evidence were unsafe.
[45]	As the Judge also said, in assessing these matters the jury was entitled to take into account other matters that supported or contradicted Mr Turner’s account.  Other relevant evidence was that Mr Hazlewood had 44 gallon drums on the back of his truck from time to time (which would have enabled Mr Hazlewood to transport the diesel that was stolen), Mr Hazlewood had a use for the diesel, and Mr Hazlewood did go on drives to collect items for vehicles which he could make use of or sell.  Mr Hazlewood also had convictions for dishonesty offending which were potentially relevant to the jury’s assessment of his veracity (as the Judge also directed).  Depending on the jury’s assessment of the evidence and of Mr Turner and Mr Hazlewood in particular, there was evidence which could reasonably have satisfied the jury beyond reasonable doubt of Mr Hazlewood’s guilt.  
[46]	This ground of appeal is therefore not made out.
Ground 4: tripartite direction
[47]	The final ground of appeal relates to the Judge’s failure to give what is known as “the tripartite direction”.  That direction is as follows:
[I]f you accept the accused’s evidence on the key issues, you should acquit; if you consider there is a reasonable possibility the accused’s evidence on the key issues might be true, you should acquit; if you reject the accused’s evidence on the key issues, you must not automatically conclude he is guilty, you must still examine all the evidence which you do accept and decide whether it establishes the accused’s guilt beyond reasonable doubt.
[48]	The Judge did not give a direction in this form.  Instead the Judge directed as follows:
Now, I need to make an important point here about your assessment.  While you may decide that you accept or reject Turner’s evidence in whole or in part, the ultimate question for you to decide in this case, is not whether you believe Turner or whether you believe the accused, but whether or not all of the evidence in the case makes you sure of the accused’s guilt.  If you are left unsure whether Turner was telling the truth about the accused’s involvement in the burglary and the theft, you must find the accused not guilty.
So just to emphasise that, you do not have to decide, “I believe him, and I don’t believe him”.  That is the wrong way to go about it.  Of course, you will do that in the course of your deliberations, but the end question, the ultimate question is, has the Crown proved beyond reasonable doubt, has the Crown made me sure that the accused is guilty of the charges?  So, if you are left in a reasonable doubt, then of course you must acquit; if you are left unsure you must acquit.
[49]	The Judge also directed that:
(a)	it was for the jury to decide what they made of a witness’s evidence and that they could accept all, some or none of their evidence;
(b)	the burden of proof was on the Crown and that this burden did not alter even though Mr Hazlewood gave and called evidence (this direction was also repeated in a later part of the summing up);
(c)	the jury needed to be alert to the risk of being unfair to Mr Hazlewood and that they could not leap from the fact of his convictions for dishonesty to a conclusion of guilty.
[50]	The Judge also mentioned in summarising the defence’s case that the defence submitted that the jury “should either accept the accused’s account, or at least it must leave [the jury] unsure of his guilt”.
[51]	As was said in R v MacDonald:
The absence of a tripartite direction will only lead to a miscarriage of justice in circumstances where there is a real risk of inappropriate reasoning by the jury and it has not been adequately brought home to the jury that the accused bears no onus and that the Crown must prove the charges beyond reasonable doubt.
[52]	Counsel for Mr Hazlewood submits that there was a real risk that the jury might have been unsure about the truthfulness of Mr Hazlewood’s evidence and that they would have jumped from that assessment to a finding of guilt.  We do not agree.  The Judge directed the jury that Mr Hazlewood bore no onus and that the Crown was required to prove the charges beyond reasonable doubt.  The Judge also directed that if they were unsure about Mr Turner’s evidence their verdict would be not guilty.  That meant they needed to be sure that Mr Turner was telling the truth if they were to find Mr Hazlewood guilty.  In circumstances where this was a straightforward contest over credibility, to be sure that Mr Turner was telling the truth they needed to be sure that Mr Hazlewood was not.  A tripartite direction would not have added to the reasoning process the jury were required to undertake.
[53]	This ground of appeal is also not made out.
Result
[54]	The appeal is dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent