The Judicial Committee of the Privy Council Decisions

Howse v. R (New Zealand) [2005] UKPC 31 (19 July 2005)

ADVANCE COPY

Privy Council Appeal No. 9 of 2005

Bruce Thomas Howse Appellant

v.

The Queen Respondent

FROM

THE COURT OF APPEAL OF NEW ZEALAND

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JUDGMENT OF THE LORDS OF THE JUDICIAL

COMMITTEE OF THE PRIVY COUNCIL,

Delivered the 19th July 2005

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Present at the hearing:-

Lord Rodger of Earlsferry

Lord Hutton

Lord Carswell

Sir Andrew Leggatt

Sir Swinton Thomas

[Majority Judgment delivered by Lord Carswell]

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1. On 4 December 2002 the appellant Bruce Thomas Howse was convicted, after a lengthy trial before Goddard J and a jury, of the murder on 4 December 2001 of Saliel Jalassa Aplin and Olympia Marissa Jetson, aged respectively twelve and eleven years, daughters of his partner Charlene Aplin. On 18 December 2002 the judge sentenced the appellant to imprisonment for life on each count, and ordered that he serve a minimum period of 28 years' imprisonment before he could be eligible for parole.
2. The appellant appealed to the Court of Appeal of New Zealand against conviction and sentence. By a written judgment dated 7 August 2003 the Court of Appeal dismissed the appeal against conviction, but reduced the minimum period which he was to serve to 25 years. The appellant has appealed, with special leave, to the Privy Council against the decision of the Court of Appeal in respect of his conviction.
3. The two victims slept in a building at the rear of the family house known as a sleep-out, which had been converted from a garage. The pathologist's evidence was that each girl received a fatal wound with a single knife thrust. He said that Saliel would have died within a few minutes, whereas Olympia bled to death over a period which he estimated at 30 minutes to two hours. The motive for the killing attributed by the Crown to the appellant was that complaints had been made by the victims about sexual abuse carried out on them by the appellant and he killed them in order to silence them, then attempted to throw the blame elsewhere, first on some intruders and then on Charlene Aplin.
4. Charlene Aplin's evidence was that she had gone to bed, leaving the appellant to complete some work on cupboard doors. She was wakened in the early hours by the appellant, who told her that he had been attacked by Polynesian males. His face was injured and his singlet was torn. Ms Aplin telephoned the police, the call being timed at 3.38 am. Police went to the scene with a tracker dog and there found the bodies of the children in the sleep-out, both in the room in which Saliel slept.
5. The appellant was seen in the local hospital, where he repeated his account of an attack on him by several men. When Detective Constable Faraimo arrived at the hospital at about 5.45 am the appellant named a person who he alleged was behind the attack. DC Faraimo then informed him that the bodies of the two children had been found in the sleep-out, whereupon the appellant began screaming and crying and gave the appearance of being very distressed. DC Faraimo conducted an interview with the appellant, commencing at 6.01 am that morning, which was recorded on video. At the outset his rights were read to him. The appellant gave an account on the same lines of the attack on him and details of the family and the events of the previous day. At 10.30 am he was medically examined, DNA samples were obtained and photographs and fingerprints were taken. The interview continued, with a number of breaks, for much of that day and into the afternoon. The total time spent in interview during this period was some three and a half hours.
6. DC Mears conducted an interview in Wellington after caution, which was also recorded on video, commencing at 12.10 am on 5 December and lasting about an hour. Prior to that interview DC Mears had conducted an oral interview with the appellant, in which he put it to him that the doctor who examined him had formed the view that his injuries were self-inflicted. Facsimile copies of pages from a notebook kept by Olympia, containing allegations of sexual abuse by the appellant, were shown to him. Throughout this and the succeeding video interview the appellant denied these allegations and adhered to his account of the attack on him.
7. The detectives who drove with him from Wellington back to Masterton formed the view that the appellant might be ready to make admissions. They contacted their superior officer and some time after 3.30 am that same night Detective Senior Sergeant Oxnam held an interview with the appellant at a motel at Masterton, where the latter was to stay. The interview lasted about an hour and in the course of it the appellant confessed to killing the two girls, saying that he heard voices and needed help. He then went to Masterton police station and had a further interview with DC Faraimo, which was recorded on video. The interview commenced some time about or after 4.45 am and was completed at 6.04 am. The appellant confirmed his account of killing of the two girls and the way in which the blows were struck. Part of the Crown case was that he could not have known the latter and that his accurate account of the direction of the knife thrusts was a clear pointer towards his guilt.
8. No further interview took place until 11 December 2001, when the appellant was interviewed under caution by DC Mears in the presence of his solicitor, whom he had previously consulted in private. On this occasion the appellant retracted his previous confessions, denied any part in the killings and blamed Charlene Aplin for committing them. He claimed that she had become fed up with the rows which she had with the two girls and was unable to take any more stress, killed them with a knife and asked him to "take the rap". He said that he made up the story which he originally gave in order to cover up the crime.
9. The defence challenged the admissibility of the inculpatory interviews and on an application brought under section 344A of the Crimes Act 1961 Gendall J held a pre-trial hearing extending over three and a half days in August 2002, as though it were a voir dire held in the course of the trial. In that hearing detailed evidence was given about the circumstances in which the interviews were held and admissions made. On 27 August 2002 Gendall J gave a written decision, whereby he held that all of the interview evidence, with the exception of one portion, should be admitted. This part of his ruling was not the subject of challenge on appeal in the Court of Appeal or before the Board.
10. Gendall J also considered at the same hearing an application to exclude evidence relating to previous acts of violence alleged to have been committed by the appellant and allegations of sexual abuse by the appellant of the two victims and their sisters Alicia and Destiny Aplin. He gave a ruling about the extent of the evidence of previous alleged acts of violence which could be admitted, and this ruling has not been the subject of any argument before the Board.
11. It is apparent from paragraph 18 of Gendall J's detailed ruling that he appreciated the distinction between hearsay evidence directed to proving the truth of its contents and evidence designed to prove only the making of the allegations:

"18. All hearsay allegations made by Olympia and Saliel are not evidence of the contents, although proof as to the truth of the fact that the statements were made. But the evidence of Alicia is not hearsay."

As he stated in paragraph 73, the Crown relied on all the evidence which they proposed to adduce as a powerful indicator of motive. It did, however, go further than propounding the evidence to prove only the making of the complaints and maintained that it could prove the truth of the allegations.

12. When he came to consider his conclusion on the admissibility of the evidence of complaints, it is apparent that Gendall J was prepared to admit it as proof of the making of the allegations, and it would appear also that he did not regard it as admissible as proof of the truth of the contents. He stated in paragraph 83 of his ruling:

"The developing narrative or circumstances of complaints by Olympia, then retracted and later revived, and brought to the attention of CYPS to the knowledge of the accused – along with the documentary hearsay contained in her diary and exercise books – are all admissible so as to provide a comprehensive picture of developing events relevant to motive. These events naturally involved the accused acknowledging complaints were made, and denying the truth not only to counsellors but also to the detectives in interview. Additional to this is the evidence of Saliel's complaint to her sister, her threat to 'nark' and the semen stain linked to the accused. It would be unrealistic to exclude such evidence because if accepted, it is relevant to the Crown's case that in fact sexual abuse had occurred on both girls, and disclosure was imminent with the accused's motive being to prevent further disclosure. Its probative value from the point of view of the Crown's case as to motive far outweighs it prejudicial effect."

13. Gendall J went on to consider Alicia's evidence, which, as he stated in paragraph 86, was similar fact evidence designed to support the truth of the deceased girls' allegations. He held in paragraph 88 that, although he regarded it as borderline, the probative effect of the evidence outweighed its obvious prejudicial impact and decided to admit it. He also admitted the notes in Olympia's exercise book alleging that the appellant had made threats to kill her. He concluded by pointing out that his rulings were subject to review or variation by the trial judge.
14. The appellant lodged an appeal against Gendall J's ruling, but later abandoned it.
15. When the case came to trial in November 2002 the Crown did not confine itself to calling the evidence required to prove that the appellant knew that allegations of sexual abuse had been previously made and were resurfacing, which was relevant to establish the motive for the murder which the Crown case attributed to him. Not only did the prosecution adduce the evidence of a considerable number of witnesses relating to complaints made by the two girls, but some evidence was called which was plainly designed to prove that the appellant had in fact been guilty of sexual abuse. One of the grounds of appeal relied on by counsel for the appellant was that the judge did not attempt to limit the evidence to that which was directed to proving that complaints had been made and had come to the knowledge of the appellant, nor did she exercise any restraining influence on the prosecution in respect of the quantity of evidence which was called on this topic once the necessary facts material to the issue had been sufficiently established. In consequence evidence was allowed in which was not limited to complaints as such, but tended to establish the fact that the appellant had committed sexual abuse on the two murdered girls. It was also submitted that the amount of evidence of complaints called by the Crown was disproportionately large, which created the risk that it may have distracted the jury from the proper issues and given rise to a degree of prejudice to the appellant.
16. The trial judge gave a summing up to the jury which was relatively brief, in view of the amount of evidence which had been given over a trial of some four weeks, but no point has been taken that important matters were omitted. She gave the jury a proper warning about putting aside feelings of sympathy or anger or distaste, but at a couple of places later in her summing up she herself gave way to such feelings, when she would have been better to express herself in more dispassionate judicial terms. In particular, as the Court of Appeal noted, she spent very much longer than was desirable in explaining to the jury why she was not leaving manslaughter as a possible verdict, with a description of the killings in terms which were unduly emotive and capable of fuelling prejudice.
17. When she came to consider the evidence of complaints by the victims the judge commenced by stating correctly that they were material to the issues as evidence of motive, which was a pointer towards deciding whether the appellant or Charlene Aplin killed the two girls. Unhappily she failed to continue to make it clear to the jury that this was the ground for admission of the evidence when she discussed it in the following part of the summing up. It is clear from paragraphs 44 to 48 of the summing up and the inclusion of Alicia's evidence that the appellant had interfered with her that she approached the evidence of complaints not merely as evidence that complaints had been made but as evidence that the allegations were in fact true. The tenor of her directions to the jury was such that they had the issue put before them for determination whether they believed that the allegations had been made out. Having so approached the evidence, she did not warn the jury that it was not to be treated as proof of the truth of the allegations, but only as proof that they had been made and had come to the knowledge of the appellant.
18. It may be borne in mind that Gendall J had ruled that Alicia's evidence could be admitted as similar fact evidence, which would be admitting it as evidence of the truth of the allegations made by her. Nor did counsel then appearing for the appellant challenge its admissibility or that of the complaints or requisition the judge about the basis on which she had put the evidence before the jury in her summing up. The judge did not, however, seek to review that ruling or consider whether or on what basis any of the evidence of complaints should be admitted. The Court of Appeal was justifiably critical of this failure, since rulings on the admission of evidence are always subject to review as matters develop in a trial and it is always a matter which a trial judge should keep in mind during its progress, whether or not counsel mount any challenge to the evidence in question.
19. The judgment of the Court of Appeal, which was given by Tipping J, addressed mainly the issue of the admission of prejudicial matter, in particular the admission of evidence aptly described as having "both a hearsay and a non hearsay dimension" and the absence of any direction from the judge as to the use which could properly be made of it. Mr King on behalf of the appellant advanced several other grounds of appeal, but the Court of Appeal did not find them made out and they have not been the subject of argument before their Lordships. Tipping J posed the central issue in paragraphs 9 and 10 of his judgment:

"[9] It was a significant part of the Crown case that Mr Howse had a motive for the killings whereas Ms Aplin did not. The motive ascribed by the Crown to Mr Howse related to the sexual abuse which it was said he had perpetrated on both girls. He was thus intent on silencing them so he could not be pursued for his sexual offending. Mr Howse's stance on this aspect of the case was that while he was aware that allegations of sexual offending had been and were being made against him by Olympia in particular, he was not guilty of such offending.

[10] It is material to note that his awareness of the allegations could itself have constituted a motive. The Crown, however, wished to strengthen its case by also asserting that the allegations were true, thus strengthening the motive. Hence there arose a clear conceptual distinction between the making of the allegations, which was not disputed, and their truth, which was. This distinction assumes central importance on the hearsay issues to be discussed below."

20. Tipping J considered the amount of evidence of the appellant's misconduct adduced by the Crown and concluded that cumulatively there was an undesirable amount which was more prejudicial than probative. He stated the court's conclusion at the end of paragraph 19 of his judgment:

"Without going into further detail we consider that the cumulative and diverse weight and extent of the evidence of Mr Howse's past misconduct was apt to distract the jury from the need for a dispassionate analysis of the evidence and an assessment of its true worth, the more so in the absence of any specific direction from the trial Judge as to the proper and limited scope of this kind of evidence which was relevant to motive but not disposition per se. On their own these points may not have raised a real risk of a miscarriage of justice; but they are relevant to our overall appraisal of this aspect of the case."

The court held that the judge had gone further than was appropriate in her discussion of manslaughter and that it would have been better to give a very short and neutral explanation to the jury why manslaughter was not a live issue and left it at that (paragraph 41). It did not consider, however, that in the circumstances of the case it occasioned a real risk of a miscarriage of justice.

21. The court then turned to the issue of the admission of the complaints of sexual abuse. Tipping J drew a careful distinction between hearsay evidence, adduced in order to prove the truth of the statements retailed, and evidence adduced in order to prove only that the statements were made. He went on in paragraphs 20-21:

"The problem is that words can have a double significance. First, the fact that they were said or written may be significant in itself. But the words may also assert the occurrence of some event, the happening of which is in issue.

[21] This duality arose in the present case. Olympia tells school friends that her step-father is sexually abusing her. The fact of her saying this (ie. her making the allegations) has relevance to motive once it is established that Mr Howse was aware of the allegations. If evidence is led to prove the fact that allegations were made, consideration must necessarily be given to whether the same evidence can also be used before the jury to prove the truth of the allegations. Evidence is always admissible to prove the fact that words were spoken if that confined fact is relevant. Whether the evidence may also be used as proof of the truth of the words spoken engages the hearsay rule. The question becomes whether the evidence should be admitted for that purpose also. If the evidence is not admitted as proof of the truth of what has been said, the Judge must direct the jury very carefully as to the use they may and may not make of the evidence. If the risk that the jury will use the evidence inappropriately, in spite of proper judicial direction, is too great, the primary evidence should be excluded as involving too much potential prejudice as against its probative force. If that issue arises its resolution will depend on the Judge's perception of the balance between the degree of probative force the evidence has as against its capacity for illegitimate prejudice."

22. Hearsay evidence is admissible in criminal trials in New Zealand, subject to its satisfying certain requirements, which were summarised in R v Manase [2001] 2 NZLR 197 as relevance, inability and reliability. It must of course be relevant to an issue in the trial; the maker of the hearsay statement must be unable to attend to give testimony in person; and it must have sufficient apparent reliability to pass a threshold level. The Court of Appeal examined the evidence of Olympia's allegations and concluded (paragraph 28) that her oral allegations did not satisfy the threshold requirement of sufficient apparent reliability. The judge, as gatekeeper, should accordingly not have allowed the evidence to go before the jury as proof of the truth of the allegations. The court considered that Olympia's diary entry, though prima facie admissible under the provisions of the Evidence Amendment Act 1980, should have been excluded because its prejudicial effect far outweighed its probative force in the light of Olympia's general unreliability and the inability of the appellant to cross-examine on it.
23. The court considered Saliel's allegations briefly, but did not find it necessary to reach a determination on whether they should have been admitted. It did express the view that although there may have been sufficient apparent reliability in her case, the Crown might have faced difficulties over the balance of prejudicial effect against probative force. Once it was established that evidence of Olympia's allegations had been wrongly admitted for the purposes of proving their truth, there was a miscarriage of justice, subject to the proviso. The court added that Alicia's evidence should not have been admitted. When evidence of Olympia's allegations was excluded and that of Saliel's allegations was confined, as it should have been, to proof of the fact that they were made, there was no basis for admissions of Alicia's testimony as evidence of similar facts.
24. The court went on to hold that the judge should have given a clear and firm direction on the proper use of the allegations of sexual abuse. Tipping J said in paragraph 43:

"The jury should have been warned in strong terms not to use this evidence as proof that the allegations were true, and not to treat the evidence as having been led for that purpose."

He concluded that this dimension must be regarded, prima facie at least, as having occasioned a miscarriage of justice.

25. The Court of Appeal then turned to consider the application of the proviso. The governing provision is section 385(1) of the Crimes Act 1961, which provides, as amended:

"(1) On any appeal [to which subsection (1AA) applies, the Court of Appeal or the Supreme Court must] allow the appeal if it is of opinion –

(a) That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

(b) That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) That on any ground there was a miscarriage of justice; or

(d) That the trial was a nullity –

and in any other case shall dismiss the appeal:

Provided that the Court of Appeal [or the Supreme Court] may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

The approach of the court, following the case of R v McI [1998] 1 NZLR 696, was to ask whether it could be sure that the jury would without doubt have convicted had not the matter or matters giving rise to the initial miscarriage not been present. The court examined in some detail the evidence concerning the knife blows which caused the victims' deaths and the appellant's description in interview with Detective Senior Sergeant Oxnam of the stabbing and concluded at paragraph 52:

"We do not consider it reasonably possible that Mr Howse was able to give such a precise demonstration of how he killed the girls coinciding exactly with the wounds they actually suffered, unless he was the person who wielded the knife. As noted earlier, he did not suggest he had obtained these details from Ms Aplin; nor did he suggest he had obtained this information from having seen the girls' dead bodies. Furthermore, we note that the Detective Senior Sergeant was not cross-examined as to the accuracy of his descriptions, nor to suggest he had any other means of knowing the nature of the wounds at the time of the interview. It would therefore be stretching credulity beyond breaking point to entertain the possibility that, by an amazing coincidence, Mr Howse happened to have fabricated or guessed the nature, number and precise details of wounds inflicted in differing ways by someone else.

26. The court then discussed three other matters which it regarded as very strongly probative of the appellant's guilt:

(a) there was no evidence to support the appellant's out of court assertion that Charlene Aplin was the killer, his varying explanations of the events of the night of the killings destroyed his credibility and Ms Aplin had no motive to kill the girls whereas the appellant had a strong one;

(b) the accuracy of the appellant's recall of the pattern of blood left by Olympia as she moved about the room after the stabbing, which would have been an extraordinary feat unless he was involved in administering the wound and its aftermath;

(c) the lack of a reasonable explanation for the presence of Olympia's blood on the appellant's trousers.

The court concluded at paragraph 56 that the combination of these points led to "an irresistible inference of guilt" and that no substantial miscarriage of justice had occurred. It therefore applied the proviso and dismissed the appeal against conviction.

27. There were two themes to the argument presented to the Board by Mr King on behalf of the appellant. The major theme was that the deficiencies in the trial were so many and so great that the appellant did not receive a fair trial, and accordingly the proviso should not be applied. The minor theme was that some of the reasons on which the Court of Appeal had founded its decision that a jury would inevitably have convicted the appellant were erroneous and so the proviso had been wrongly applied. Their Lordships will discuss the latter issue first.
28. The Court of Appeal said in paragraph 55 that no sufficient evidential foundation had been laid for any suggestion that Olympia's blood got on to the appellant's trousers by innocent means. Mr King submitted that this was a factual error on the part of the court, since the appellant had told the police in his last interview that he had seized the knife from Charlene Aplin, cutting himself in the process and that blood which had been on the knife could in that way been transferred to his hands and thence to his trousers. There may be some substance in this point, but their Lordships do not consider that it is capable on its own of effecting a significant diminution of the strength of the case against the appellant. Secondly, it was submitted that the court placed undue reliance upon the description of the stabbings given by the appellant to Detective Senior Sergeant Oxnam, given in circumstances in which the appellant was under a good deal of pressure, in an interview not recorded at the time and recollected by memory by DSS Oxnam. The third submission, which links both with the second submission and with the major theme, was that by reason of the admission at the trial of so much prejudicial evidence of complaints of sexual abuse the appellant was prevented from giving evidence and could not mount an effective challenge to many of the matters in the Crown case, including the reliability of the account given by him to DSS Oxnam.
29. If this third submission were well founded it would give substantial weight to the appellant's case both on the minor theme and on the major theme that he did not receive a fair trial. The argument presented on behalf of the appellant was summarised in paragraph 18 of the judgment of the Court of Appeal:

"Counsel argued that so many unattractive facets of Mr Howse's life were exposed before the jury in detrimental terms, that the prejudice was overwhelming and made it virtually impossible for Mr Howse to give evidence, as he would otherwise have wished, without exposing himself to cross-examination on a large number of prejudicial aspects of his life."

30. Their Lordships do not consider, however, that this is a realistic argument. Mr Pike, counsel appearing for the Crown before the Board, submitted that it was most unlikely that the appellant would have gone into the box in any circumstances. A counter-submission was advanced on behalf of the appellant, that one cannot tell what course the appellant and his advisers would have taken if the prejudicial evidence had been omitted and that it is undesirable to speculate. While recognising that this can be advanced as a theoretical argument, their Lordships regard it as most unlikely in reality that the appellant would have given evidence. They consider that it is clear that if he had done so he would have been subjected to withering cross-examination on the many manifest weaknesses in his case (leaving out the allegations of sexual abuse) and would have destroyed his own case. In particular, he would have found it impossible to give a convincing explanation of his self-inflicted wounds and the three totally conflicting accounts given by him to the police of what had taken place. Their Lordships accordingly do not place any weight on the suggestion that by reason of the admission of prejudicial evidence relating to allegations of sexual abuse the appellant was deprived of the opportunity of giving evidence in his defence.
31. Bearing this conclusion in mind, their Lordships have taken account of the submissions made on this point and reviewed the evidence given by DSS Oxnam. The application of the proviso is a matter for the determination of the Court of Appeal, whose function is to apply the test whether the jury would inevitably have convicted if there had been no errors or irregularities in the trial. Their Lordships will not ordinarily set aside the conclusion of the Court of Appeal on this issue unless it is shown to be based on an incorrect appreciation of the law or some manifest and significant misapprehension. They consider that the Court of Appeal was fully entitled to rely on the account given by him of the admissions made by the appellant and to draw the conclusions which it did. They therefore do not accept that the argument based on the appellant's minor theme, that the proviso was wrongly applied on the facts, has been made out.
32. They turn then to the major theme, that the appellant did not receive a fair trial and so the proviso should not be applied at all. It may be observed that although this formed the main basis of the submissions of the appellant's counsel before the Board, it occupied only one brief paragraph in his substantial written submissions to the Court of Appeal and received only passing mention in para 26 of the Court's judgment. The foundation for the submission is section 25 of the New Zealand Bill of Rights Act 1990, which provides that everyone who is charged with an offence has, in relation to the determination of the charge, certain minimum rights, which include

"(a) the right to a fair and public hearing by an independent and impartial court;

* * * *

(c) the right to be presumed innocent until proved guilty according to law;

(d) the right not to be compelled to be a witness or to confess guilt;

(e) the right to be present at the trial and to present a defence."

Section 6 provides that

"Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning."

Mr King submitted that the proviso must be interpreted consistently with the minimum standards of criminal procedure set out in section 25 of the Bill of Rights Act. He contended, in reliance on R v Griffin [2001] 3 NZLR 577 para 40, that the right to a fair trial is an absolute right, and where it is breached the proviso cannot be applied. This point was made briefly in one paragraph (para 191) of the appellant's detailed written submission to the Court of Appeal, but the argument does not appear to have been developed and it is alluded to only in one phrase in para 56 of the court's judgment.

33. The submission advanced on behalf of the appellant was that the defects in the trial were so many and so serious that it cannot be said that he had a fair trial. In considering this submission it is necessary to examine closely what is meant by a fair trial in this context and the relationship between the right to a fair trial and the operation of the proviso. The authorities make it clear that not every irregularity or error in the conduct of a trial, even if it might constitute a miscarriage of justice for the purposes of an appeal under section 385(1) of the Crimes Act 1961, will in this context suffice to make the trial unfair. Barwick CJ in Driscoll v The Queen (1977) 137 CLR 517, 527 warned that

"If … every irregularity of summing up, admission of evidence or in procedure warranted a new trial, the basic intent of the criminal appeal provisions would be frustrated and the administration of the criminal law plunged into outworn technicality."

There may be errors in the course of a trial, whether relating to the admission of evidence or in legal rulings or in the terms in which the judge sums up to the jury or in the conduct of the judge or counsel, which while they can be described as giving rise to unfairness, do not constitute such grave irregularities and so undermine the integrity of the trial that it can be said that the accused was denied a fair trial. On the other hand there may be some trials where, notwithstanding the overwhelming weight of the evidence against the accused, the proceedings at trial have been so defective that there has scarcely been a trial at all, with the result that the proviso cannot be applied.

34. The principle to be applied was considered by the High Court of Australia in Wilde v The Queen (1988) 164 CLR 365 and by the Board in Randall v The Queen [2002] 1 WLR 2237. In Wilde v The Queen the accused was charged with sexual assaults on two women and theft from them on two separate occasions. The judge directed the jury that they might use evidence against the accused in relation to either attack as similar fact evidence to establish the identity of the accused as the accused as the attacker upon the other occasion. The accused was acquitted of the charges relating to the first incident and convicted of those relating to the second. The Court of Criminal Appeal held that the judge had wrongly directed the jury concerning the use which they might make of what occurred on each of the two occasions and that there ought to have been separate trials. The court nevertheless dismissed the appeal on the ground that the evidence in support of the counts upon which the accused was convicted was so strong, and the defence so weak, that the proviso to section 6(1) of the Criminal Appeal Act ought to be applied. On appeal the majority of the High Court, Brennan, Dawson and Toohey JJ, stated in their judgment at page 372:

"However, it was submitted that the question whether a reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental. In such a case, it was submitted, it does not matter what the strength of the prosecution case or the weakness of the defence case was. Reliance was placed upon what was said by Gibbs J in Quartermaine v The Queen (1980) 143 CLR 595, 600-601:

'Ordinarily, when there has been a misdirection of law, the proviso to s.689 [Criminal Code (W.A.)] will be applied if the Crown establishes that if there had been no misdirection the jury would (or must) have come to the same conclusion. However, Wickham J, who delivered the judgment of the Court of Criminal Appeal in the present case, recognized that even if this were established "there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that 'there had been a serious departure from the essential requirements of the law'." The Court of Criminal Appeal was right in taking that view of the law …'

This view is undoubtedly correct, for the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being "plunged into outworn technicality" (the phrase of Barwick C.J. in Driscoll v The Queen, (1977) 137 CLR 517, 527; it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have been convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso …"

The High Court went on to state that there is no rigid formula to determine what constitutes a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted. It stated at page 373 that

"The wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances."

35. The court made it clear in Wilde v The Queen that it is the significance of the evidence wrongly admitted, in the context of the trial, which must determine whether the error is of a fundamental kind. It stated at page 374:

"When viewed in context, it does not appear that the evidence wrongly admitted in relation to the counts upon which the applicant was convicted can have carried any significant additional weight having regard to the other evidence. This is, of course, to take into account the strength of the prosecution case upon those counts and the weakness of the defence but it is to do so for the purpose of determining the gravity and significance of the error and not for the purpose of determining whether the jury would inevitably have convicted notwithstanding the error. The two questions are obviously intertwined where the error is one of the wrongful admission of evidence, but they must be considered separately."

36. Their Lordships agree with these statements of the law and consider that they are correct. They are principles which are not confined to jurisdictions with a constitutional provision similar to section 25 of the New Zealand Bill of Rights Act 1990. In Randall v The Queen [2002] 1 WLR 2237 the appellant's complaint was that the prosecuting counsel had conducted the case in such a manner as to cause grave prejudice to him and to deprive him of the substance of a fair trial. Delivering the judgment of the Board, Lord Bingham of Cornhill stated in paragraph 28:

"28. While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial."

Although these statements have to be read in the context of the type of procedural unfairness concerned in that appeal, the approach is one of general application.

37. Their Lordships are mindful of the warning given by Barwick CJ in Driscoll v The Queen and consider that the threshold for application of this principle needs to be kept high, if the operation of the proviso is not to be stultified. It is particularly important in a case like the present appeal to assess the significance of the evidence wrongly admitted against the background of the evidence as a whole given at the trial. There were undeniably very serious errors on the part of the trial judge in a number of respects, which have been set out in this judgment and that of the Court of Appeal: the admission of a large body of hearsay evidence which was led by the Crown which was inadmissible; the admission of evidence which was more prejudicial than probative; the failure by the judge to direct the jury that evidence of complaints was not to be treated as proof of the truth of the allegations, but only as proof that the allegations had been made and that the appellant was aware of them; and the judge's explanation to the jury why the issue of manslaughter was not being left to them in terms which were too emotive and prejudicial to the accused.
38. One is entitled and bound, however, to ask what the course of the trial would have been like if the errors had not been made. It would have been proper to lead evidence that both girls had made recent allegations and that the authorities were about to investigate them, which provided a powerful motive for the appellant to silence them, very much stronger than any motive which could be attributed to Charlene Aplin. He had ample opportunity to commit the murders. His behaviour, the self-inflicted wounds and the false story which he told are heavily adverse to his case, and the jury may well have found unconvincing the explanation put forward for the blood on his trousers. Most damning of all was the accuracy of the description which he gave of the path of the knife wounds inflicted upon the victims, something he could not possibly have known if he had not inflicted them himself. Similarly, he described the pattern of the blood in a degree of accurate detail which supports the conclusion that he was present and observed it.
39. Their Lordships entirely agree with the conclusion reached by the Court of Appeal that the prosecution case against the appellant was overwhelming. They consider that there was no realistic possibility that the jury would have felt it necessary to have recourse to the inadmissible evidence to be satisfied that the accused had murdered the two girls and they think that the evidence wrongly admitted cannot have carried any significant additional weight having regard to the other evidence. No doubt the jury took the inadmissible evidence into account in coming to their verdict, and this will often be the position where inadmissible evidence pointing to guilt is admitted. But where the other evidence properly admitted proves with overwhelming force that the accused is guilty, their Lordships consider that it cannot be said that the admission of the improper evidence constituted a fundamental error which made the trial unfair.
40. Their Lordships accordingly conclude, applying the criteria set out in R v Wilde and R v Randall, that the errors were not radical or fundamental enough, nor were they such a departure from the essential requirements of the law as to deprive the appellant of a proper trial within the context of the present enquiry. They were undoubtedly serious and regrettable, but their Lordships do not consider that they changed the direction of the trial or that the conviction was fundamentally flawed.
41. They will humbly advise Her Majesty that the appeal should be dismissed.

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Dissenting judgment by Lord Rodger of Earlsferry and

Sir Andrew Leggatt

42. We have the misfortune to disagree, respectfully but fundamentally, with the conclusion of the majority of the Board that the appellant had a fair trial.
43. As the majority have explained, the basic and irreducible entitlement of any accused person is to a fair trial. That entitlement is, of course, reflected in paras (a) and (c) of section 25 of the New Zealand Bill of Rights Act 1990 which provide that everyone charged with an offence has the right, in relation to the determination of the charge, to a fair and public hearing by an independent and impartial court and the right to be presumed innocent until proved guilty according to law. But, in this respect, the Bill of Rights Act simply gives modern legislative expression to a right which has been part of the common law inheritance of generations of New Zealanders.
44. The right exists for the benefit of all those who are charged with a crime – for those who actually committed it just as much as for those who did not. No-one is to be convicted and punished unless his guilt has first been established in a fair trial according to law. The safeguards which the law provides in such a trial are designed to ensure, so far as possible, that the guilty are convicted and the innocent acquitted. The particular safeguards that apply in New Zealand are to be found in a mixture of common law and statutory rules. When trials are conducted according to those rules, people respect the verdicts because they have been reached in conditions which the law regards as fair. Observance of the rules therefore serves the wider public interest as well as the interests of the accused.
45. The long tradition of New Zealand as well as English law is that "every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed": Mraz v The Queen (1955) 93 CLR 493, 514 per Fullagar J. One very important rule to be followed restricts the leading of hearsay evidence to prove the truth of the allegation. As the Court of Appeal noted in R v Manase [2001] 2 NZLR 197, 210, para 45:

"It is because it has always been thought that the dangers of hearsay evidence cannot be dealt with adequately by a direction to the jury that the law has consistently withheld hearsay evidence from the jury unless it qualifies as a recognised exception."

In that case the court held that there was a general exception under which hearsay evidence could be admitted. That exception is relevant in the present case. The first requirement of the exception is that the primary witness is unable for some reason to be called to give the primary evidence. Secondly, at para. 30:

"[t]he hearsay evidence must have sufficient apparent reliability, either inherent or circumstantial, or both, to justify its admission in spite of the dangers against which the hearsay rule is designed to guard. We use the expression 'apparent reliability' to signify that the judge is the gatekeeper and decides whether to admit the evidence or not. If the evidence is admitted, the jury or judge, as trier of fact, must decide how reliable the evidence is and therefore what weight should be placed on it. If a sufficient threshold level of apparent reliability is not reached, the hearsay evidence should not be admitted. The inability of a primary witness to give evidence is not good reason to admit unreliable hearsay evidence."

The Court of Appeal went on to note, in para 31, that, as a final check, the court must consider whether hearsay evidence which might otherwise qualify for admission should nevertheless be excluded because its probative value is outweighed by its illegitimate prejudicial effect.

46. Although the hearsay rule now admits of this general residual exception, the court recognises the continuing importance of the basic exclusionary rule itself. It guards against the "dangers" in hearsay evidence. The nature of those dangers is well known. Second-hand reports are notoriously prone to be inaccurate. Most importantly, the person who made the allegation cannot be challenged in court and the strengths and weaknesses of the allegation cannot be readily explored. So the court will admit such evidence only where it has sufficient apparent reliability to justify its admission in spite of these dangers. Where the evidence does not come up to that standard, admitting it is liable to introduce into the trial dangers which cannot be dealt with adequately by a direction to the jury. Those dangers will be at their greatest when the judge mistakenly thinks that the evidence is admissible and leaves the jury with the clear understanding that they can properly use it in reaching their verdict.
47. A trial where the appropriate rules of evidence and procedure are observed can properly be regarded as fair. But not every failure to observe the rules makes a trial unfair. In practice, mistakes can and do occur and so the courts long ago devised means of putting many of them right within the context of the trial itself. Even where a mistake is not corrected, the trial will still be fair if, in all essential respects, it is the kind of trial which the law expects that an accused should have.
48. But, equally, it is recognised that some flaws are so bad that one can say that the accused has not had that kind of trial. Obvious examples are where the judge or jury is biased or the accused is prevented from putting forward his defence. Of their very nature these flaws inevitably deprive the accused of any real trial of the allegations against him. No-one would suggest that such a trial could be regarded as fair. The effect of other errors depends on the particular circumstances. To take an example that is relevant to the present appeal, this is plainly the case where inadmissible evidence is admitted. If only a small amount of hearsay evidence is wrongly introduced on a relatively minor issue in the trial, any danger it presents may well not be so great as to make the trial as a whole unfair. But where the safeguard of the hearsay rule has been torn away and a large amount of unreliable hearsay evidence has been led on a central issue in the trial, the position is very different. This departure from the essential requirements of a trial according to law may well have gone to the root of the proceedings so that, even if all the other relevant safeguards have been observed, the accused has not had a fair trial.
49. Ultimately, therefore, except in certain extreme cases, what makes a trial unfair depends on the particular circumstances and raises questions of degree. As the Board observed in Randall v The Queen [2002] 1 WLR 2237, 2251, para 28, the right of a defendant to a fair trial is absolute and

"There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial."

50. Where matters have gone so far wrong that the trial must be condemned as unfair, in terms of section 385(1) of the Crimes Act 1961, there has been a substantial miscarriage of justice and the jury's verdict must be set aside. The prerequisite for the application of the proviso – that there should have been no substantial miscarriage of justice – is simply not met.
51. Randall v The Queen concerned misconduct on the part of prosecuting counsel. In Wilde v The Queen (1988) 164 CLR 365, on the other hand, the High Court of Australia had to decide on the fairness of a trial in a case, like the present, where evidence had been admitted when it should have been excluded. Since the majority have invoked that decision in support of their approach in the present case, we must examine it in a little detail.
52. A woman was sexually assaulted in her own home on 26 September 1983. After the incident she noticed that $50 were missing from her purse. The appellant was charged with a sexual assault (count 1) and with stealing the money (count 2). On 28 September a house was broken into and a car and a car key were stolen. The appellant was charged with two counts relating to this second incident (counts 3 and 4). On the following day another woman suffered various sexual assaults and after the incident she noticed that money and jewellery were missing. The appellant was charged with four counts (5 to 8) relating to this third incident. An application for separate trials of the charges arising out of the three incidents was refused since the judge considered that the evidence on the first two incidents was admissible in relation to the charges arising out of the third incident. Subsequently, on the direction of the judge, the appellant was acquitted of count 1. The jury themselves acquitted him of count 2, but then convicted him of all the charges relating to the two incidents on 28 and 29 September. The appellant appealed against his conviction. The Court of Appeal held that the evidence relating to the first incident had not been admissible in proof of the charges arising out of the third incident. Counts 1 and 2 should accordingly have been severed from the indictment. But the court dismissed the appeal on the view that the evidence in support of the counts on which the appellant was convicted was so strong, and the defence so weak, that there had been no miscarriage of justice. The appellant appealed to the High Court of Australia which, by a majority (Brennan, Dawson and Toohey JJ; Deane and Gaudron JJ dissenting), dismissed his appeal.
53. Brennan J, for the majority, first identified the kinds of case where an appeal court could apply the proviso and uphold a jury's verdict even though there had been a departure from the requirements of a properly conducted trial. These cases were to be distinguished from others where the error in the conduct of the trial was "fundamental". Brennan J, at p 372, described as "undoubtedly correct" the view of Gibbs J in Quatermaine v The Queen (1980) 143 CLR 595, 600 – 601 that there would be a substantial miscarriage of justice "if the trial was so irregular that no proper trial had taken place, in that 'there had been a serious departure from the essential requirements of the law'". Gibbs J was correct because, in the words of Brennan J, at pp 372-373:

"the proviso was not intended to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being 'plunged into outworn technicality' (the phrase of Barwick CJ in Driscoll v The Queen (1977) 137 CLR 517, 527); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that on a proper trial the appellant would inevitably have convicted. The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury's verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso …

There is no rigid formula to determine what constitutes such a radical or fundamental error. It may go either to the form of the trial or the manner in which it was conducted…. But the wording of the proviso is quite general and it is clear that it may be applied notwithstanding a misdirection concerning the law or the wrongful admission of evidence. In the end no mechanical approach can be adopted and each case must be determined upon its own circumstances."

54. Particularly in view of some concerns expressed by the majority of the Board, we note that this test, which refers to "a serious departure from the essential requirements of the law" or requires that there should have been a "radical or fundamental error", embodies a high threshold for holding that a trial is unfair. There is therefore no risk that, by applying it, an appeal court will stultify the proviso. The test is indeed entirely consistent with the high threshold which must be crossed before the proviso itself can be invoked: per Tipping J giving the judgment of the Court of Appeal, at para 56.
55. The majority of the High Court went on to consider the circumstances of the Wilde case where evidence relating to the first incident had been wrongly admitted in relation to the third incident. They approached the matter on the basis that "[i]t is the significance of the evidence wrongly admitted, in the context of the trial, which must determine whether the error was of a fundamental kind". We would respectfully adopt that guidance, but it is important to see how the High Court applied it. They began by noting that the evidence in relation to the first sexual attack was markedly weaker than the evidence in relation to the second such attack. It was therefore most unlikely that the jury would have felt it necessary to have recourse to the evidence relating to the first occasion in order to establish the identity of the applicant on the second. This was borne out by the acquittal of the appellant on the count of theft on the first occasion, since the only evidence in dispute seemed to have concerned the identity of the applicant. Brennan J went on, at p 374:

"When viewed in context, it does not appear that the evidence wrongly admitted in relation to the counts upon which the applicant was convicted can have carried any significant additional weight having regard to the other evidence. This is, of course, to take into account the strength of the prosecution case upon those counts and the weakness of the defence, but it is to do so for the purpose of determining the gravity and significance of the error and not for the purpose of determining whether the jury would inevitably have convicted notwithstanding the error. The two questions are obviously intertwined where the error is one of the wrongful admission of evidence, but they must be considered separately. Once it is determined that the error was not of a fundamental kind, the question must still be asked whether a reasonable jury would inevitably have convicted had the error not been made. There can be no doubt that the Court of Criminal Appeal gave the correct answer to that question in this case."

In this passage the majority of the High Court were carrying out the exercise of assessing the significance of the evidence that had been wrongly admitted. In doing so, they had regard to the evidence against the appellant relating to the second occasion, i e the third incident. Since the prosecution evidence was strong and the defence weak, they concluded that the inadmissible evidence relating to the first incident would have been unlikely to carry significant additional weight. The fact that the jury had acquitted the appellant on the theft charge relating to the first incident obviously reinforced that conclusion: if the jury had not found it a reliable indicator that he had committed count 2, they would hardly have relied on it to hold that he had committed the counts relating to the third incident.

56. Applying the same approach in the present case, we can, of course, take account of the strength of the other evidence available to the Crown on the murder charges and the apparent weakness of the defence, but only as one of the factors to be considered when deciding how significant the admission of the inadmissible evidence was in the context of the trial. By contrast, to use it at this stage, as the majority of the Board propose, to decide that "no reasonable jury would have acquitted [the appellant] of the murder of the two girls" is to do precisely what the High Court say, at p 374, an appeal court should not do when considering whether the trial was fair. In Wilde it did not appear to the majority that the inadmissible evidence "can have carried any significant additional weight, having regard to the other evidence." Not surprisingly, in these circumstances they concluded that the error in admitting it had not been fundamental.
57. The present case could not be more different. As Lord Carswell has explained, the Court of Appeal identified a catalogue of defects in the trial: the admission of a large body of hearsay evidence which should have been excluded, having regard to the common law and the Evidence Amendment Act 1980; the admission of an undesirable amount of evidence which was more prejudicial than probative; the failure to give a clear and firm direction to the jury about the limited proper use of a particular item of evidence; and the inclusion in the summing-up of an explanation of why manslaughter was not a live issue which was not only unnecessary but couched in terms that were more emotive than was desirable. The first question accordingly is whether these defects, taken singly or together, were so fundamental that, in substance, the appellant did not have the benefit of all those safeguards which must be observed if a trial is to be fair according to the law of New Zealand.
58. Unfortunately, the Court of Appeal did not address this question directly. Having identified the defects in the trial, their Honours immediately proceeded to consider whether, despite them, the appeal should be dismissed by applying the proviso in section 385(1) on the ground that no substantial miscarriage of justice had occurred. In deciding that there had been no substantial miscarriage of justice, the Court of Appeal concentrated on the evidence against the appellant as tending to prove his guilt and did not deal with the effect of the defects on the fairness of his trial.
59. The written skeleton argument prepared by Mr King for the hearing before the Court of Appeal included a reference to the appellant's right to a fair trial according to law as enshrined in section 25(a) and (c) of the Bill of Rights Act. But, as he himself frankly admitted in the course of his measured submissions to the Board, neither that aspect nor indeed the possible scope for the application of the proviso had featured prominently in the hearing before the court. In particular, he had not cited Wilde v The Queen and had not been aware of the decision of the Board in Randall v The Queen. However that may be, the Court of Appeal judgment shows that their Honours were aware that the issue had been raised. Dealing with arguments on the facts as to why they should not apply the proviso, Tipping J said, at para 56:

"We considered all Mr King's submissions on this aspect of the case. We appreciate the point he made about fair trial considerations, natural justice and the presumption of innocence. All these matters are recognised in the jurisprudence concerning the proviso and the high threshold which is necessary for its successful invocation. We have borne that very much in mind. We are nevertheless satisfied by reason of the matters we have discussed that the Crown has established the criteria for the application of the proviso. We are sure that even if the problems with the trial we have identified had not occurred, the jury would without doubt have convicted Mr Howse on the two counts of murder. The combination of the points noted above leads to an irresistible inference of guilt, which the jury must have recognised. We therefore consider that no substantial miscarriage of justice has actually occurred in this case. For these reasons the appeal against conviction is dismissed."

The reasoning in this passage would, of course, justify the conclusion that, if the appellant had had a fair trial, this would be a case where the proviso could be applied. To that extent, we would see no basis whatever for interfering with the court's conclusion. What the reasoning does not address, however, is the prior point as to whether the appellant's trial, viewed overall, was fair. If not, there has been a substantial miscarriage of justice and, for that reason, the proviso cannot be applied. Here the defects identified by the Court of Appeal were so far-reaching that this was a live issue which could not be glossed over, but had to be addressed expressly.

60. The Board has therefore to deal with this question without the benefit of the considered views of the Court of Appeal. That is unfortunate, but neither side suggested that the point should be remitted to the court to ascertain their views. Both counsel argued that the Board could decide it on the available material. Moreover, although both sides made tentative criticisms of some aspects of the Court of Appeal's decision on the defects in the trial, in the end both counsel were content to argue the appeal on the basis that, in this respect, their decision was essentially correct. Put shortly, the contention for the appellant was that things had gone so far wrong – as the Court of Appeal had shown – that the only possible conclusion was that the appellant had not had the kind of trial to which he was entitled under the law of New Zealand. There had therefore been a substantial miscarriage of justice and the appellant's conviction should be set aside, irrespective of the strength of the evidence against him. Mr Pike, for the Crown, argued that, despite all the defects, the trial had been fair and this was an appropriate case in which to apply the proviso.
61. We have reached the clear conclusion that, in this very unusual case, there was indeed such a fundamental or radical departure from the requirements of the law that the appellant's trial cannot be regarded as fair.
62. From the outset of the police inquiry there was never any doubt that the two girls had been brutally murdered. Indeed, long before the trial, it was clear that the only issue would be whether the Crown could prove that it was the appellant who had murdered them. Equally clearly, the suggestion for the appellant was going to be that their mother, Charlene Aplin, was the murderer. It may well be that the evidence available to the Crown about the circumstances of the murder pointed strongly to the appellant as the murderer and so would have been enough, by itself, to overcome this line of defence. But counsel for the Crown decided to go further and to add to it. He devised a strategy to show that the appellant, rather than Charlene Aplin, was the violent one and that he, rather than she, had a motive for killing the girls. For motive, the Crown set out to show that the appellant killed them because he had been abusing them and was afraid that this was going to come to light.
63. The evidence of motive was hearsay. Having obtained a pre-trial ruling, however, that the evidence was none the less admissible, the Crown put their strategy into effect at the trial. We shall come back to what happened in a moment. At present we simply note that at the end of the trial the jury convicted the appellant of the murders but, on appeal, the Court of Appeal held that the evidence which had been led to prove that he had abused the girls was inadmissible because it was unreliable. In other words, in the view of the Court of Appeal, the evidence which lay at the very heart of the strategy devised by the Crown for pinning the blame on the appellant by showing that he had abused the girls was so unreliable that the jury should never have been allowed to consider that question at all.
64. We emphasise that the Crown's strategy was to show not merely that the girls had made allegations of abuse against the appellant, but that he had actually abused them. As the Crown rightly recognised when they embarked on this strategy – and contrary to what the majority imply – there is a world of difference between these two positions. If a girl makes a false allegation against a man that he has abused her, he will be understandably outraged and defiant. He may even consider some kind of legal action against her. But he is very unlikely to kill the girl in order to stop her making the allegation. On the other hand, where the allegation is true and the man sees that his crime is liable to be exposed, he will have a powerful motive for killing the girl and – the jury may well think - a disposition depraved enough to be capable of doing so. The Crown set out to establish a powerful motive of that kind.
65. It is not surprising therefore that in her summing up Goddard J put motive at the forefront of her directions on the substantive issues in the case, immediately after her unnecessary and unfortunately coloured comments on manslaughter. She told the jury that, in satisfying themselves about the identity of the killer, it would clearly be helpful to ascertain whether either of Charlene Aplin or the appellant harboured any animus towards the children and had any motive to kill them. She continued:

"In relation to the accused Howse, the Crown points to evidence that he was sexually abusing the two girls and that they were disclosing or threatening to disclose this, and say that he killed them to literally shut them up.... The accused is not of course on trial for sexually abusing the girls. The allegations are however part of the relevant background leading up to their deaths, and which the Crown says points to motive on the part of the accused to kill the girls."

Later, having recorded the submission of defence counsel that the jury should discount entirely any of the evidence relating to alleged sexual abuse of the children by the appellant, the judge told the jury that it was very much a matter for them. But, she added, "If you do accept that evidence, you may think that it does tend to establish a motive for the accused to kill, as the Crown contends."

66. The trial judge is often better placed than any appellate court to identify what was, and what was not, a real live issue and so to give a pointer to the significance of particular evidence in a trial. In this case there is no doubt that Goddard J considered the matter of motive to be of critical importance at the trial. In giving her written reasons, during the trial, for overruling defence counsel's renewed objection to admitting Alicia's evidence, she said, at para 4:

"The starting point for the admissibility of Alicia's evidence is the context in which the Crown sought to adduce it and its relevance to the central live issue at trial. … The central question for the jury was which of two identified persons had killed the children. There was no issue that anyone other than one of those two persons had committed the murders. The affirmative defence raised by the accused prior to trial, when he named Charlene Aplin as her children's killer, essentially put her in the role of one of those accused persons. In light of this affirmative defence and the narrow scope of the enquiry into the ultimate issue, it was clearly relevant to examine whether either the accused or Charlene Aplin, as the only two persons involved, harboured any animus toward the dead children or had any motivation to kill them" (emphasis added).

Later, in para 13, referring to all the aspects of the evidence of abuse, Goddard J said that they resulted in "a powerful evidential picture pointing not only to attitude, approach and state of mind of the accused but also motive on his part to murder." In the following paragraph, her Honour summarised the position in this way:

"In this case, where an affirmative defence raised by the accused was of such a narrow, unequivocal and unusual nature, and where motive did assume such high relevance, any evidence tending to prove or disprove motive was probative, subject of course to the degree of weight that the jury might properly accord it" (emphasis added).

67. The importance which the judge attached to this aspect of the case shines through in other areas also. When she came to address the appellant in regard to sentence, the judge referred to "the fact" that

"you were sexually molesting these children prior to their deaths and that you were undoubtedly motivated to kill them either out of vindictiveness or to conceal your wrongdoing or a mixture of both."

She came back to the point, when she told the appellant:

"As I earlier noted, there was a gross abuse of trust implicit in your sexual molestation of the two children, for whom you were in the role of stepfather. That gross abuse of trust was also implicit in your reason for killing them. I unequivocally accept, as I am sure the jury did, that you were sexually molesting these children before their deaths and that your desire to get rid of them stemmed, at least partly, from the fact that Olympia's complaints were on the verge of being actioned" (emphasis added).

68. The Court of Appeal have held that the hearsay evidence, which the Crown led, over and over again, from a series of witnesses in order to establish this motive, was inadmissible because it was unreliable. In other words, the jury were invited to accept – and, in the judge's view, must "unequivocally have accepted" - unreliable hearsay evidence directed to establishing the appellant's motive for killing the girls. Needless to say, if wrongly admitted, such evidence would be very highly damaging and prejudicial in any trial. Here, however, the jurors would have accepted that inadmissible evidence in a trial where, the judge considered, the question of motive assumed "high relevance" in relation to the "central live issue at the trial". Unlike Wilde v The Queen (1988) 164 CLR 365, therefore, this is a case where, on the trial judge's assessment, the inadmissible evidence in relation to the central live issue at the trial must have been accepted by the jury. Moreover, the Crown cannot now plausibly contend that the jury are unlikely to have relied on that evidence when the Crown's position at trial was that, in deciding who killed the girls, they should have regard to it. Clearly, to use the test in Wilde v The Queen, at p 374, the evidence carried additional significant weight in the trial.
69. It is impossible to imagine a clearer example of a trial that has gone off the rails by the admission of evidence which, the law provides, should not be admitted precisely because it is dangerous for a jury to rely on it. The rules of evidence were designed, precisely, to prevent a trial being conducted on that basis. Therefore, even if every other aspect of the trial had been perfection itself, in this core respect it would not have been conducted in the way that the law of New Zealand requires. In fact, however, as the Court of Appeal showed only too clearly, there were many other aspects of the trial which were far from satisfactory. We forbear to dwell on them. Even assuming – as we do for the sake of the argument – that none of these other factors, either singly or in combination, would have been enough to make the trial unfair, they certainly exacerbated the position in what was already, when judged by the standards of the law of New Zealand, an unfair trial. We could use more robust language to describe it but, with difficulty, restrain ourselves from doing so.
70. If a trial is unfair, it matters not how that came about. It is therefore unnecessary and unhelpful to apportion blame for the state of affairs in this case. The problems started with the prosecution strategy - but that was approved by Gendall J in his pre-trial ruling. His Honour gave that ruling with exemplary speed in order to allow the appellant, if so advised, to challenge it on appeal. Counsel then acting for the appellant marked an appeal but, for whatever reason, abandoned it. As had been intended, the pre-trial ruling in effect set the parameters for the trial. But Goddard J really embraced the approach to admissibility adopted by Gendall J. Certain other aspects of the trial were much less than satisfactory. Only after the trial, when it was too late, did the problems come to light in the decision of the Court of Appeal. Leaving blame aside, it is enough for us to say that the appellant did not have the fair trial to which he was entitled. For that reason there was a substantial miscarriage of justice. The appeal should accordingly be allowed, the conviction quashed, and the case remitted to the Court of Appeal to decide whether to order a retrial.