In the Court Of Appeal of New Zealand
CA355/2010
[2010] NZCA 517

BETWEEN	ANDREW RICHARD WAARA
Appellant

AND	THE QUEEN
Respondent

Hearing:	22 September 2010

Court:	Harrison, Chisholm and Ronald Young JJ

Counsel:	S J Gill for Appellant
M J Inwood for Respondent

Judgment:	17 November 2010 at 11.30 a.m.

JUDGMENT OF THE COURT	

The appeal on both counts is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction
[1]	Andrew Waara appeals against his conviction following trial before Gendall J and a jury in the High Court at Wellington on 16 April 2010 on two counts of aggravated robbery.  He does not appeal against his sentence of eight years’ imprisonment.  
[2]	The circumstances of the two robberies were not in issue at trial.  The sole question for determination was whether Mr Waara was a party to either or both of the robberies.
[3]	Mr Gill, who did not appear in the High Court, advanced these four grounds of appeal for Mr Waara.  First, that Gendall J failed to put a critical plank of the defence case adequately in summing up to the jury; secondly, that the summing up was unbalanced and unfair; thirdly, that evidence relating to Mr Waara’s involvement with two modified sweatshirts should have been excluded; and fourth, that the Judge should have severed trial of the two counts.
[4]	We shall address each ground of appeal in the same order after first outlining the background facts.  In this respect we have been assisted by the summaries provided by Mr Gill and Ms Inwood for the Crown.
Background
Silverstream robbery
[5]	At about 9.30 pm on 22 November 2008, two men robbed the Silverstream New World supermarket.  Both were heavily disguised.  Each was wearing gloves and a homemade balaclava, described by a witness as black and small with holes cut out for the eyes.  One man was armed with a firearm.  Cash amounting to $1760 and some tobacco was stolen.
[6]	The two robbers departed in a vehicle which had been stolen earlier that day from the North City Shopping Centre.  The car was found abandoned outside a Stokes Valley address three days later.  People were seen taking items from its boot.  The police were called the next day and a parking notice issued by the shopping centre was found in the vehicle’s footwell.  Mr Waara’s fingerprint was later detected on the notice.  
[7]	In addition, a cellphone used by Mr Waara had stored these text messages sent from his cellphone before the robbery: 
(a)	An inquiry about “Dog, got a warm one?” followed by “Get Komar to drive”.  On the police case, “a warm one” referred to a stolen vehicle and “Komar” was the nickname for Ben Autu, who was convicted of stealing the car.
(b)	After Mr Waara directed another party to “Go to your place, we’ve got a car”.  Shortly afterwards both Mr Waara’s phone and the receiving phone were poling at the same Stokes Valley cellphone site.  After the getaway car was found in the same area.  
(c)	A few hours before the robbery, Mr Waara requested a third party to collect him at the Silverstream train station. 
[8]	The Crown’s case was that Mr Waara participated in the Silverstream robbery by arranging for the get-away vehicle to be stolen and providing the robbers disguises
Kilbirnie robbery 
[9]	At about 2.20 pm on 2 December 2008, the Kilbirnie Kiwibank/Post Shop was robbed in similar circumstances.  Two people ran into the shop wearing gloves and similar balaclavas, described as dark grey and apparently homemade.  One robber had a shotgun.  The other carried a knife.  Cash amounting to $2,295 was stolen.  The robbers made their escape in a stolen vehicle.  
[10]	Again, text messages stored on Mr Waara’s cellphone were relevant.  Earlier on 2 December a third party sent him a message to the effect that “We have to find a safe car before proceeding”.  Then, just before the robbery occurred, another text message was sent to Mr Waara’s cellphone.  He did not answer but the phone poled on cell sites just over the road from the Kiwibank/Post shop and later at Mount Victoria near where the get-away car was found, when another person sent a text to Mr Waara’s phone inquiring whether “you fellas alright?”.
[11]	The Crown’s case was that Mr Waara participated in the Kilbirnie robbery by acting as the get-away driver and providing the disguises.  
Search warrants
[12]	On 13 December 2008 the police executed search warrants at a Porirua address occupied by Mr Waara’s mother and on his partner’s car which was parked outside.  In the car boot, the police found a grey sweatshirt with both sleeves cut off.  Inside the address police found two pieces of grey cloth which physically fitted the top part of the sweatshirt’s left sleeve.  This evidence, which was relevant to both charges, features prominently in the first ground of Mr Waara’s appeal.  
[13]	The police interviewed Mr Waara later that day.  He made an exculpatory statement, denying any participation in the robberies.  He gave his address as his mother’s address although he acknowledged that he had been staying at his partner’s house.  
[14]	On 19 December 2008 the police executed a search warrant at the house occupied by Mr Waara’s partner in Lower Hutt.  Another grey hooded sweatshirt from which the arms had been cut was seized. 
Rimutaka Prison
[15]	On 14 January 2009 a prison officer found the cellphone (referred to in [7] above) hidden in the hollow leg of an exercycle in a room in Rimutaka Prison.  Mr Waara had been present there earlier.  An expert analysis established that the phone was used by Mr Waara throughout the period covered by the two robberies: in particular, it was used to assist in the theft of the first get-away car from the North City shopping centre; it was poled in the area of both robberies and along the paths which the get-away cars travelled after each robbery; and it was the source of messages sent to Mr Waara’s partner and a third party on 19 December 2008 during the police search of her property.  Mr Waara’s trial counsel, Ms Hall, mounted an extensive challenge to this evidence in cross-examination but did not call contradictory expert evidence.
[16]	The cellphone exchange with the third party during the police search on 19 December 2008 assumed particular significance.  It opened with Mr Waara’s enquiry “What are the pigs doing at Aroha’s?” and “What did they take?”.  The recipient replied “Just [your] grey top”.  Mr Waara then enquired “Did it have arms missing?”.  The other party answered “Yes it did”.  About three minutes later he texted: 
Fuck it, that don’t mean shit anyone could have put it [there].  ... my batteries just about flat ...
[17]	The trial lasted for four days.  The Crown called evidence from eyewitnesses, scientists and police officers.  Some were cross-examined in great detail by Ms Hall.  Mr Waara elected not to give or call evidence.  
Issue (1): Defence case
[18]	First, Mr Gill submits that Gendall J failed when summing up to refer to a fundamental plank of Mr Waara’s defence, to the effect that the Crown’s reliance on the sweatshirt evidence was diversionary or a “red herring” because there was no evidence the sweatshirts found were associated with the balaclavas used in the robberies.  
[19]	Determination of this submission requires consideration of the context.  The prosecutor, Mr O’Donoghue, closed the Crown’s case on the basis that Mr Waara participated in both robberies by providing disguises from the sleeves of the two sweatshirts.  When addressing the sweatshirt issue, which was a secondary part of the prosecution case, Mr O’Donoghue referred to the importance of disguises to those who commit armed robberies and the probability that a person who had cut the sleeves off a sweatshirt would want to get rid of that apparel; to the search on 13 December and the police discovery of the sleeves in Mr Waara’s partner’s motor vehicle; and to the text exchange between Mr Waara and a third party as “very important evidence”.  He then said:
That was an odd thing to do, cut the sleeves off a sweatshirt in that way but its even odder still isn’t it, it’s even more of a [coincidence] because he’s done it to two grey sweatshirts which were under his possession or control. 
[20]	Later Mr O’Donoghue said this:
The sheer coincidence of these robbers wearing home-made looking gear and is he has cut, the sleeves off two sweatshirts in his possession and under his control.  That’s where they’re found, in the boot of his girlfriend’s car and on the closet in the address where he was living at the time ... .  Well, at the end of the day, in my submission to you, you can be sure that he intentionally encouraged  and helped the others commit the first robbery, and he acted as the getaway driver, and therefore helped and encouraged that second offence as well.  And he provided, in my submission to you disguises for the robbers to wear, from the arms or sleeves cut off those sweatshirts.
[21]	The greater part of Mr O’Donoghue’s address was devoted to the cellphone messages, the parking ticket and all the other circumstantial evidence supporting the Crown case.
[22]	Ms Hall’s closing address surveyed the evidence in meticulous detail.  At an early stage she formulated three issues for the jury’s determination.  The first was to identify who sent the text messages relating to the stolen car on 22 November; the second was to identify who had possession of the phone on 2 December; and the third was:
... did the grey sweatshirts that you’ve seen here have anything to do with the two robberies and if they did, did Mr Waara have possession and control of those sweatshirts?  Did he cut the sleeves off, provide those sleeves to the armed robbers knowing that they were going to be off to do an armed robbery?
[23]	Ms Hall noted briefly that “there’s no actual evidence that that dark grey sweatshirt has anything to do with the two robberies”, before revisiting the subject in greater detail.  Her objective was to cast doubt on this aspect of the Crown case, summarised in her proposition that “Mr Waara did not cut the sleeves off the sweatshirt or any other sweatshirt to make a balaclava to assist in an armed robbery”.
[24]	Gendall J summed up, also in detail, in a direction lasting an hour and a half.  When summarising the Crown case on the sweatshirt, the Judge said this:
[44]	Anyway, the Crown’s case is those pieces of circumstantial evidence, when put together, are overwhelming, but then the Crown says yet there’s more because the robbers are wearing, and you’ve been able to see what they wear, the type of disguised headgear similar, perhaps the same, but similar to that used later at the Kilbirnie Post Shop and the Crown says that has been fashioned from cut up grey dark hoodies.  And the Crown says the further connection of the accused to those disguises is firstly, there is in his girlfriend’s car beside his bag, or pack, and clothing, at Aberfeldy Street in Porirua when he’s arrested, a cut up hoodie.  Inside the home, that’s his mother’s home, in the bedroom which he slept in, or was in the night before, are pieces of that same cut up hoodie.
[Emphasis added]
[45]	And the Crown says but there’s more, because a couple of weeks later, two to three weeks later, at the home of the accused[‘s] girlfriend and where the accused lived, there is, on a shelf in a wardrobe, another hoodie with its sleeves cut off.  And the Crown says the accused knew it was there and was concerned about it being there because the Crown refers you to the texts made by the accused, his cellphone, in which he expresses concern but knowledge of the sweatshirt being there because the Crown says the communication was that that accused says, “What did they take?” “A sweatshirt” or “your sweatshirt” perhaps does not matter but what matters, the Crown says, is the accused’s then response, “Did it have its sleeves off?”  And the Crown says that is because he knew it was there, because he put it there, and because he was involved somehow in its sleeves being removed.  Now, the defence says well, of course he knew the police were interested in a sweatshirt, because he’d been shown the sweatshirt in the photograph, but the Crown’s case of course is that that photograph was of the sweatshirt from Porirua not the one in the girlfriend’s – in his home at – in Lower Hutt. 
[25]	On the defence case on the same point, the Judge said:
[48]	... and the defence says well it’s not proven that he had possession of it [the cellphone], was involved in that way, nor that he cut off the sleeves of the shirts, or had anything to do with that.  I need to tell you, the sweatshirts issue does not turn upon the accused himself cutting off the sleeves, if that’s what was done, or himself making the hoods, if that was what was done.  It’s simply whether he had possession of the doctored garments and is this evidence that he was connected with the making in some way of the homemade hooded disguises used by the robbers on each occasion. 
[Emphasis added]
...
[51]	In dealing with the hoodies, the sweatshirts, Ms Hall said, or referred you to the accused’s denial of having anything to do with the hoodie.  She said it was found in the boot of Leighton Avenue.  I think that was just a slip.  It’s the one that was found in the boot in Aberfeldy Road in Porirua.  But he said, no, it’s not mine, looks old, never seen it before.  And Ms Hall says, well there’s no DNA evidence on it and she made the submission that if Mr Waara himself had cut the sleeves off the shirt, that shirt, why were the pieces in the bedroom inside the house and that is something that you will consider. 
[52]	Of course the Crown’s case is that the sweatshirt, that sweatshirt was not necessarily his, but simply was a sweatshirt which was linked to the hoodies, linked to the disguises.  But Ms Hall submits that there were other people in the car that day, including Mr Warren and she invites you to consider whether it’s possible that he or someone else, including Aroha, the girlfriend, or her brother, may have left it in the car and that there was – Mr Waara helped the police as much as he could on that occasion. 
[26]	Mr Gill submits that Gendall J failed to refer at all, let alone put fairly, the fundamental defence submission that the cut-up clothing allegedly found in Mr Waara’s possession was not used as the balaclavas in either of the robberies.  Instead, he says, the Judge’s references were effectively criticisms of the defence case or positive re-affirmation of the Crown case, advanced during that part of the summing said to be dealing with Mr Waara’s defence.  In particular, Mr Gill submits that the Judge’s comments at [52] of the summing up were insufficient to convey what he says is the stronger point: that according to the defence, the cut-up sweatshirts had nothing to do with the robbery; and that the Judge should have declared “loudly and clearly” that this was the defence case.  
[27]	The starting point for consideration of this argument is that a Judge is not obliged to recite to a jury every submission made by counsel.  His or her duty is to summarise the essence of the competing cases, if possible by discrete reference to the elements of a charge or the issue or issues falling for determination.
[28]	On analysis, Mr Gill’s argument comes down to a complaint about degree.  Gendall J had expressly identified for the jury that the first of the two questions relating to the sweatshirt evidence was whether Mr Waara “... was connected with the making in some way of the homemade hooded disguises used by the robbers on each occasion”.  We do not regard the fact that the Judge did not give greater emphasis to that point, but instead focussed on the thrust of defence counsel’s proposition that the Crown had not proved the second or consequential step of Mr Waara’s involvement in modifying the apparel, as in any way detracting from the fairness of his summing up or leading to a material omission.  Both issues were plainly in contention and, as Ms Inwood submits, the jury must have been alive to them and to Mr Waara’s denial of each element.
[29]	Two additional points should be emphasised.  First, Ms Hall did not raise this point with the Judge at the completion of his summing up.  While her omission is not decisive, it is telling.  As is customary, Gendall J invited counsel to communicate any material errors or omissions in his directions.  A lengthy exchange followed between the Judge and Ms Hall, culminating in her complaint about imbalance.  She gave as an example the Judge’s alleged omission to highlight her submission that a sweatshirt may not have had sleeves other than short capped ones (this was hardly a justifiable complaint).  She said nothing about an alleged failure to put a fundamental plank of the defence case on the sweatshirt point.
[30]	Second, Ms Hall’s cross-examination and submissions on the sweatshirt issue focused heavily, almost exclusively, on the second or subsidiary step of whether Mr Waara was involved in altering or modifying the garments.  She addressed this issue in detail as part of what we assume was a deliberate defence strategy, referring only briefly to the question of whether the sweatshirts were in fact associated with the offences. 
Issue (2): Balance and fairness
[31]	Second, Mr Gill submits that Gendall J’s summing up was unfair, unbalanced and heavily weighted in the Crown’s favour.  Its cause, he submits, lay in the Judge’s adoption in summing up of a practice of repeating the Crown case when summarising and criticising the defence case.
[32]	The inquiry must be whether the summing up read as a whole against the factual background, the evidence given at trial, the charges themselves and the prosecution and defence cases was unbalanced and unfair and may have led to a miscarriage of justice.  An approach which cherry-picks, compares and dissects without this contextual analysis and overview does not ultimately assist.
[33]	As noted, the Crown’s case against Mr Waara on both charges was of a circumstantial nature.  Its critical components were the content, timing and location of Mr Waara’s text messages.  By electing not to give evidence, Mr Waara’s defence relied solely on casting doubt upon the Crown case through intensive cross-examination.  This strategy carried its own risks for an accused person who chose not to contradict on oath evidence which, when aggregated, became progressively more incriminating.  
[34]	Gendall J’s summing up followed a conventional pattern.  He spoke in an introductory fashion about the respective functions of judge and jury.  He emphasised that the facts were the jury’s responsibility.  He identified the constituent elements of evidence and how they should be treated.  He gave orthodox directions on the onus and standard of proof and the requirement for unanimity.  Mr Gill does not criticise any of this.
[35]	The Judge moved next to the process of drawing inferences and its relationship with circumstantial evidence.  Mr Gill accepts that it was appropriate to address this issue in detail.  The Judge gave a brief summary of the circumstances upon which the Crown relied to form the basis for inferential findings adverse to Mr Waara, emphasising that inferences or conclusions must be drawn from proven facts.  He then warned the jury against choosing between inferences of equal weight before giving examples offered by Ms Hall about how the evidence may support an inference unfavourable to the Crown case.
[36]	Mr Gill’s first specific criticism of the summing up is that the Judge immediately interposed the Crown’s answer to the defence case on inferences in this passage:
So the Crown says, you can draw the inference that others may have used that [cellphone], and you can draw that inference also because of the content. The defence suggests that you could draw the inference that the … car, that is the one transporting Komar in Porirua to steal the vehicle … is perhaps connected to the robberies. Well, that’s something you may consider, although, in the end, that may not help the defence, and I am going to talk to you a little bit later.    
[37]	But it is obvious that the transcript contains an error.  When read in context, the phrase “…the Crown says” does not make sense.  The Judge was plainly referring to what the defence said.  However, we agree with Mr Gill that it was unnecessary for the Judge then to comment that Ms Hall’s submission: “… in the end … may not help the defence and I am going to talk to you [about it] a little bit later”.  He should have refrained from any commentary potentially adverse to the defence when outlining counsel’s case on inferences.
[38]	Gendall J then addressed the legal elements of the two counts by express reference to the indictment, emphasising that the charges were separate and that the jury was to consider the evidence relating to each separately and return verdicts accordingly.  He paid special attention to the meaning of secondary participation given the Crown’s case that Mr Waara was a party.  
[39]	Significantly, the Judge did not deal with this critical part of the case theoretically or in isolation from the facts.  Instead, he followed the constructive path of relating the concept of secondary participation to the Crown’s case.  Mr Gill made a passing criticism but did not develop a submission that the Judge failed in this section to refer to the defence case.  We are not satisfied that Mr Gill’s criticism is justified.  The Judge was clearly explaining how, if certain facts were proven, the jury might infer Mr Waara’s participation.  He was explaining practically and helpfully what evidence might be sufficient to constitute Mr Waara a party to the armed robberies.
[40]	Gendall J discussed miscellaneous but important aspects of identification and expert evidence, and direct use of the transcript.  He then addressed Mr Waara’s statement to the police, again in orthodox terms.  Nevertheless, Mr Gill submits that the Judge should have directed the jury in the interests of balance and fairness that if it:
… accepted the statement as being a true account of [Mr Waara’s] movements at the time of the robberies, or even if you think there is a reasonable possibility that [Mr Waara] is not there then you should find him not guilty.
[41]	We do not accept Mr Gill’s submission.  Gendall J summarised Mr Waara’s denial of participation made to the interviewing officer.  He pointed out properly that Mr Waara’s statement was not given on oath but was nevertheless admissible as evidence.  He advised the jury that it was entirely within its province to determine the weight to be given to Mr Waara’s statement.  What was important was his emphasis on the statement’s evidential relevance.
[42]	The immediately succeeding passage of Gendall J’s summing up is significant because it favoured Mr Waara’s defence in an important respect.  In closing, Mr O’Donoghue had repeatedly submitted to the jury by reference to the text messages that Mr Waara lied to the police when making his statement.  However, the Judge went to some lengths to diminish, if not exclude, the importance of any lies told by Mr Waara.  At one stage he directed the jury to “forget about the Crown’s submission” because it was “completely circular”.  In the context of this case, we are satisfied that the Judge’s direct message assisted Mr Waara, and it is unfortunate that Mr Gill omitted to refer to it when discussing fairness and balance.
[43]	The final part of the summing up dealt at length with the competing cases.  Mr Gill does not criticise the time which the Judge devoted about equally to each side.  Instead, he says that the Judge used his summary of the Crown case to introduce criticisms of the defence case, and vice versa.  
[44]	Mr Gill accepts that the Judge’s summary of the Crown case was fair.  On analysis, his criticism of this part of the summing part reduces to two points.  One relates to the Judge’s introduction of the defence case that Mr Waara’s fingerprint might have found its way onto the parking notice sometime after the robbery.  The Judge said:
Now, the defence say, well, there is other reasons and ways that his fingerprint may have got on it.  He might have got into the car some other time when some people were seen going to the car removing items from the boot and you will remember that evidence, though I do not recollect anyone spoke of getting inside the car.
[45]	While it is not orthodox practice to refer piecemeal to the defence case when summarising the Crown case, we cannot see that any harm ensued to Mr Waara.  Mr Gill does not suggest that Gendall J was wrong in his fleeting recollection of the evidence.  Again it was unnecessary for the Judge to interpolate an adverse observation about the defence case when summarising the Crown case.  But we note that he later expressly repeated the same defence submission when summarising Mr Waara’s case, omitting any reference to the missing evidence.  We might add that Gendall J would have been entitled to comment that a submission that Mr Waara’s fingerprint may have found its way on to the parking notice through other means was speculative and should be disregarded in the absence of a proper evidential foundation.  That the Judge refrained from this observation was to Mr Waara’s benefit.
[46]	Mr Gill’s other criticism of the Judge’s treatment of the Crown case arises from this passage:
Now, the defence says, well of course he knew the police were interested in the sweatshirt, because he had been shown the sweatshirt in the photograph, but the Crown’s case of course is that that photograph was of the sweatshirt from Porirua not the one in the girlfriend’s – in his home at – Lower Hutt.
[47]	We agree with Mr Gill that this observation may be construed as inappropriately answering a part of the defence case within a summary of the prosecution case.
[48]	Mr Gill devoted most of his attention to the Judge’s treatment of the defence case.  We do not propose to traverse all his submissions; we are satisfied that a number are erroneous or inconsequential.  For example, Mr Gill submits that this statement made at an early part of the Judge’s summary of the defence case was an unwarranted criticism of defence counsel:
Now Ms Hall emphasised to you that what she says is that the accused is in fact innocent.  I think that what she means is that she is presumed to be innocent, and he is, the law presumes him to be innocent, and he is innocent until proven [guilty] beyond reasonable doubt.
[49]	In our judgment, this direction was not only correct but of assistance to Mr Waara in correcting a potential source of confusion arising from Ms Hall’s address.  At an early stage she asserted that he was “… in fact innocent”.  Later she said that “…you do have to get yourself in that mindset that he is innocent”.  While we understand Ms Hall’s strategy, she may have unintentionally set the legal bar for her client too high.  The jury may have been left with the impression that its function was to choose between guilt or innocence.  
[50]	Gendall J properly brought the jury back to the presumption of innocence by repeating his earlier direction that the charges had to be proved beyond reasonable doubt.  Indeed, the Judge had just repeated his earlier direction on the standard of proof and, after correcting Ms Hall’s reference to innocence, he endorsed her submissions that the jury should not be swayed by prejudice or by Mr Waara’s association with the Mongrel Mob and emphasising Mr Waara’s right to silence.  This favourable observation could hardly be the source of legitimate complaint.
[51]	In a later passage, the Judge returned to the issues of lies, expressly endorsing Ms Hall’s submission.  He repeated that the Crown case involved circularity of reasoning and that “Ms Hall is right”.  He directed the jury to put the lies “to one side”.  Mr Gill did not refer to this passage in his written synopsis but agreed in argument that it was favourable to Mr Waara.
[52]	We have isolated what appear to be Mr Gill’s primary allegations of Gendall J’s unfair treatment of the defence case.  First, Mr Gill says that the Judge unfairly commented on the sweatshirts issue at [48] (see [25] above).  However, we are satisfied that he correctly advised the jury of the true issues arising on this part of the evidence, properly pointing out that the Crown did not need to establish Mr Waara’s actual participation in making the disguises.
[53]	Secondly, Mr Gill says that the Judge undermined a submission by Ms Hall that the jury might have expected to have heard evidence called by the police if Mr Waara was in fact lying when he said he was drinking with associates in Petone at the time of the first robbery.  While it may have been preferable if the Judge had refrained from an observation about whether members or associates of the Mongrel Mob might be particularly forthcoming in this situation, the point is diversionary because it followed the Judge’s express direction to ignore the Crown case on lies.
[54]	Thirdly, Mr Gill submits that the Judge unfairly introduced the Crown case when dealing with the sweatshirt evidence.  We agree with Mr Gill that it was inappropriate for the Judge to refer to the Crown case at all in this context, even if briefly.  However, any adverse effect was diminished, by the Judge’s immediately succeeding repetition of Ms Hall’s answer to the Crown’s proposition.
[55]	Fourthly, Mr Gill takes issue with this passage:
Ms Hall correctly submitted there is no evidence that Andrew Waara was the driver of the getaway car.  Well, of course, there is no direct evidence, there is nobody saying I saw Andrew Waara, that man, driving the car.  That’s because the Crown case is dependent upon circumstantial evidence.  There is evidence, depending on what you make of it all, that he was the driver.  If there wasn’t, he wouldn’t be charged.  The point is this, if there is no evidence a man is not charged and the Judge discharges him.  There is evidence, but you have got to figure out what you make of it.  You may consider that it is not sufficient to find guilty beyond reasonable doubt but you may, nevertheless, consider that it is.  That’s your function and I don’t think Ms Hall was meaning to put it any other way.
[56]	It is important to recognise that the Judge affirmed Ms Hall’s submission before explaining an important qualification about circumstantial evidence.  That course was open to him, although it would have been preferable to refer to it in a separate concluding summary of critical evidential issues.  However, we agree that the reference to the Judge’s power to discharge for lack of evidence was unfortunate.  We infer that Gendall J’s purpose was to point out to the jury that there was sufficient evidence, if accepted, upon which it could convict Mr Waara because he then repeated again that this was an area falling particularly within the jury’s province of responsibility.  While we agree with Mr Gill’s criticism of the Judge’s comments, we do not accept his proposition that they could be construed as equating a decision not to discharge Mr Waara with a conclusion that there was sufficient evidence of guilt.  
[57]	Fifthly, Mr Gill takes issue with this passage towards the end of the summing up:
Ms Hall reminds us that an identifying user of, the predominant user of the blue phone, the first reference to Andrew Waara, that is the full reference to Andrew Waara, is 3 December, although as I have said to you the Crown says no, much earlier, October, when a woman phoned and spoke to him on that number.
[58]	We agree with Mr Gill that it was inappropriate for Gendall J to remind the jury of the Crown case, even if in passing to answer the defence submission on a relatively important point.  
[59]	The ultimate question is whether the Judge’s comments on the defence case when taken together crossed the line into unfairness and imbalance.  It is important for a Judge summing up to observe steadfast neutrality when outlining the prosecution and defence cases.  The integrity of a fair process must be maintained without any appearance of judicial partiality.  Each side is entitled to a clear run, however weak its case may seem.  That is not to say, of course, that a Judge is barred from expressing a view on the facts, providing that the Judge has directed the jury that his or her view is not worth any particular weight and it is temperately expressed.
[60]	The problem highlighted by Mr Gill on this appeal is the frequency of the Judge’s interposed comments.  Collectively they could be construed as adverse, thereby undermining the defence case.  We agree with Mr Gill that a number of the Judge’s statements fall into that category (at [36], [45], [54], [56] and [57] above).  Each was unnecessary or inappropriate to varying degrees.
[61]	However, when these comments are measured against the rest of the Judge’s careful and correct directions, we are not satisfied that they deprive the summing up of its essential character of fairness and balance.  We repeat that significant parts favoured Mr Waara’s defence.  Despite Mr Gill’s careful argument, we are not satisfied that when viewed overall, the summing up, assessed against the touchstone of the risk of a miscarriage of justice, was unfair or unbalanced.  
Issue (3):  Exclusion of evidence
[62]	Thirdly, Mr Gill submits that the Judge should have excluded the sweatshirt evidence.  That is because the Crown did not attempt to prove that any of the clothing found in the police searches was in fact the clothing or part of clothing used in the disguises worn in either robbery; its case was simply that the clothing was similar to the material in the disguises.  Accordingly, Mr Gill submits the prejudicial effect of this evidence vastly outweighed any slight probative value it might have had. 
[63]	Mr Gill acknowledges that Ms Hall never applied to exclude this evidence.  However, he submits that Gendall J should have taken this step of his own volition because it diminished Mr Waara’s right to offer an effective defence.  Mr Gill did not identify the circumstances or events which might have alerted the Judge to the need to interfere.  Nor did Mr Gill attempt to develop his basic proposition or to satisfy either of the two criteria identified by Ms Inwood: namely, that if an objection had been properly taken Gendall J would have excluded the evidence; and that, if so, the evidence would have had such a significantly prejudicial effect on the result of the trial as to constitute a miscarriage of justice.  
[64]	Mr Gill did not lead evidence from Ms Hall to explain why an objection was not taken before or during trial, especially when she successfully made a formal pre-trial application to exclude evidence of Mr Waara’s possession of what was described as a robbery kit comprising an imitation fire arm and a black beanie.  Mr Gill’s submission attempts to place responsibility on Gendall J for Ms Hall’s conscious decision not to challenge the sweatshirt evidence and is made with the inestimable benefit of hindsight.  It is without merit and we dismiss it.
Issue (4):  Severance
[65]	Fourthly, Mr Gill submits that the Judge erred in not severing trial of the two counts of aggravated robbery, on the ground that the trial of both counts together was unfairly prejudicial to Mr Waara.  Again, trial counsel did not apply for severance and the point is taken with the benefit of hindsight.
[66]	There is a short answer to this submission.  We agree with Ms Inwood that the trial Judge’s jurisdiction to sever would have been very limited even if Mr Waara had applied.  That is because both counts alleged dishonesty offences committed within a six month period.  The Court is enjoined against severance unless “special reasons” are shown.  Mr Gill did not attempt to argue that special reasons existed here, and this ground of appeal must fail accordingly.
Result
[67]	Mr Waara’s appeal against conviction on both counts of aggravated robbery is dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent