REASONS OF THE COURT
(Given by Woolford J)
 On 22 November 2017, David Shaun Galloway was found guilty by a jury of one charge of aggravated robbery. On 2 February 2018, he was sentenced to six years and nine months’ imprisonment by Judge de Ridder. He now appeals against conviction.
 In mid-2016, Mr Galloway was introduced to the complainant through a mutual friend. At his friend’s request, the complainant allowed Mr Galloway (who he knew only as Sonic) to reside in a sleepout on his property for approximately three weeks. During that time, the complainant lent $200 to Mr Galloway which he did not repay before he left.
 On 7 August 2016, about a month after Mr Galloway left, the complainant answered a knock at his front door at about 4 am. The complainant recognised Mr Galloway as one of the men at the door. The complainant told them to get lost, but Mr Galloway said he wanted to talk to him about the money he owed him. Mr Galloway then entered the house followed by two unknown associates.
 After the complainant got dressed and made himself a coffee, Mr Galloway produced a large knife from a backpack and pointed it at the complainant. One of Mr Galloway’s associates took the complainant’s phone. The associates then began searching the complainant’s house for items of value, at the direction of Mr Galloway. Mr Galloway demanded $15,000 and wanted the complainant to go to the bank and get money out. He also wanted the keys to the complainant’s car. At one stage, the complainant was escorted at knife point to the garage, which the offenders also searched.
 Mr Galloway and his two associates were at the complainant’s house for about three and a half hours during which time they removed a large amount of property including television sets, cameras, a computer, jewellery and clothing and loaded it into the car in which they had travelled to the address. When they left they gave the complainant back his mobile phone and told him not to call the police. None of the property has been recovered.
Grounds of appeal
 Mr Galloway appeals on three separate grounds:
(a) Indirect evidence of his criminal history was wrongly introduced at two separate points during the trial through gratuitous statements of witnesses and then further highlighted in a jury question. This was not cured by judicial directions to the jury.
(b) A photo-board montage was wrongfully used in the process of identifying Mr Galloway as one of the offenders by the complainant.
(c) The Crown prosecutor, in his closing address, improperly referred to Mr Galloway not giving evidence.
Ground one: indirect evidence of criminal history
 Indirect evidence of Mr Galloway’s criminal history was introduced in the evidence of both the complainant and the officer-in-charge.
 In cross-examination, the complainant was asked 'Needless to say you’re a little bit worried about this situation clearly?' to which he replied:
Yeah, well he’s been on TV eh? Wanted by Police Ten 7.
 Then in re-examination the complainant was asked 'When did you learn his name [was] David Galloway?' to which he replied:
When I [saw] him on Police Ten 7.
The following exchange then took place:
Q. Was that before or after he stayed with you?
A. After he stayed with me.
Q. Before or after the robbery?
A. Before the robbery.
 Mr Galloway’s photograph had been broadcast on the television programme Police Ten 7 in late July 2016 together with advice that he was wanted by the police. Anyone who knew his whereabouts was asked to contact the police.
 In evidence-in-chief the officer-in-charge referred to an interview he had with Mr Galloway. He said:
So I went to an address in Paremoremo. There I spoke with Mr Galloway explaining to him that I wished to speak to him about an allegation of an aggravated robbery. Following normal police procedure, I gave him his caution Bill of Rights.
 The officer-in-charge then read out the interview he had with Mr Galloway. It included the following:
Question, 'How do you know [the complainant]?'
Answer, 'I met him through mutual acquaintances. I met him maybe, approximately three or four months before -' there appears to be a typo, 'my recall.' I think that’s supposed to say, 'if I recall.'
Question, 'Is your nickname Sonic?'
Answer, 'I’ve been called loads of different nicknames Sonic is one of them.'
 Finally, the officer-in-charge was asked about Mr Galloway’s arrest. He stated:
Q. Did you eventually arrest Mr Galloway?
A. So it was, it was done formally through a, a corrections process. He was – charges were laid. I did not go personally and do it myself but yes Mr Galloway was formally charged and informed.
 The reference by the officer-in-charge to an address in Paremoremo obviously caught the attention of the jury because the first question they asked after they retired to consider their verdict was:
Please clarify the address of the first interview between Mr Galloway and Detective Todd.
 We accept that the way this question is framed is best understood as an indirect query about whether Mr Galloway was in prison at the time of this interview. The Judge answered the question by saying that the place where Mr Galloway was interviewed was irrelevant.
 The answer given by Mr Galloway in his interview with the officer-in-charge that he met the complainant 'three or four months before my recall' was also not a typographical error, as the officer-in-charge had suggested. Mr Galloway had been sentenced to nine years and three months’ imprisonment for manslaughter in the High Court at Wellington in 2011 and was on parole at the time of the offence. The Parole Board had issued a warrant for his recall to continue serving his sentence of imprisonment because he had breached his release conditions, but he was unable to be located. That is why his photograph was broadcast on Police Ten 7 in late July 2016.
 As to the reference that Mr Galloway’s arrest 'was done formally through a Corrections process', we accept that the jury would have understood that the New Zealand prison system is run by the Department of Corrections.
 Counsel for Mr Galloway submits that the indirect evidence of Mr Galloway’s criminal history was significantly and illegitimately prejudicial to him. First, he says the references to seeing Mr Galloway on Police Ten 7 lead to an inference that Mr Galloway was wanted by the Police and was actively avoiding them for unrelated offending at the time of the aggravated robbery. That was in fact the case. There was an outstanding warrant for Mr Galloway’s arrest for breach of his release conditions from prison.
 Second, he says the references to interviewing Mr Galloway in Paremoremo and his arrest through a formal Corrections process lead to an inference that Mr Galloway was a prisoner at the time of interview and subsequent arrest. That was also in fact the case.
 Counsel accepted, however, that Mr Galloway’s reference to 'before my recall' was masked by the officer-in-charge’s comment that this appeared to be a typographical error. He accepted that it was unlikely that was understood by the jury as a reference to prior offending.
 Counsel notes that there is no reference in the Judge’s summing up to any of these disclosures in the evidence. No assistance was therefore provided to the jury about how to deal with the material in their deliberations.
 The issue of the unexpected disclosure by a prosecution witness of evidence of a defendant’s criminal history has been considered in several cases. The cases make it clear there is no fixed way of dealing with such disclosures. In R v W, this Court noted that 'inadvertent disclosure of imprisonment is not of itself sufficient reason to discharge the jury' and framed the test as:
... whether there is a real danger or a reasonable suspicion that the defendant was or might have been prejudiced by what took place. Inadvertent disclosure of imprisonment is not itself sufficient reason to discharge the jury.
 The enquiry is contextual - it will depend on the nature and manner of disclosure. In Edmonds v R, this Court said:
The enquiry by this Court on appeal is contextual. ... The nature and manner of the disclosure must be considered. For example this Court would be more likely to find that a miscarriage of justice had occurred if a witness had unilaterally, or at the invitation of the Crown, taken matters into his or her own hands and introduced damaging and irrelevant material that affected the fairness of the trial. On the other hand if the answer given is a natural response to a line of questioning in cross-examination, the position may well be different. The nature of the defence case at trial will be another factor. Where the case hinges on the credibility of witnesses, unfairly prejudicial evidence may be considered more significant. However where there is physical or other evidence which corroborates the credibility of one or other of the witnesses, then the effect of the unfairly prejudicial evidence may be lessened. Measures taken after the evidence is given are very likely to be significant. The fact that no jury direction is given where prejudicial evidence is inadvertently disclosed is not determinative. This Court is likely to regard as significant the fact that an experienced trial judge did not see fit to intervene, or see any need to direct the jury about evidence later complained of on appeal.
 Prior to the commencement of evidence, defence counsel raised two issues with the Judge. First, he had noted a reference in the complainant’s brief of evidence to him knowing that Mr Galloway was wanted and said his preference was that such evidence was not led. Second, he had noted reference to Mr Galloway being interviewed at Paremoremo and again said his preference was that the prison was not mentioned. The Judge took a short adjournment to enable Crown counsel to speak with both the complainant and the officer-in-charge.
 The evidence that the complainant knew Mr Galloway was wanted by the police was therefore not led in evidence-in-chief. It arose for the first time in crossexamination and was a natural response to a question asked by defence counsel. Similarly, the officer in charge did not mention prison, referring only to the place of interview as being Paremoremo and Mr Galloway being charged through a formal Corrections process.
 Having carefully considered all the circumstances, we are of the view that the complainant’s knowledge that Mr Galloway was wanted by the police had some relevance in explaining, in part, why he sat passively throughout the aggravated robbery and why he waited four days before he made a complaint to the police. He was clearly worried about his own safety. His concerns were heightened because he knew that Mr Galloway was being actively sought by the police at the time.
 It would have been preferable if the Judge had explained the limited relevance of such evidence and warned the jury against reasoning improperly that because he was wanted by the police on another matter, he must have been correctly identified by the complainant as one of the offenders in the aggravated robbery.
 There is, however, no record of defence counsel asking the Judge to specifically direct the jury on the issue. He obviously took a 'less said the better' approach. The Judge is also an experienced trial judge. He did not see fit to intervene or see the need to direct the jury about the evidence later complained of on appeal. He gave a general sympathy and prejudice direction in his opening remarks and repeated it in the summing up. In those circumstances, we do not consider that there was a real danger or a reasonable suspicion that Mr Galloway was or might have been prejudiced by the inadvertent and indirect references to his criminal history.
Ground two: use of photo-board montage
 The complainant did not immediately call the police - he reported the robbery four days later on 11 August 2016. When asked by defence counsel why he did not call the police straight away, he said:
I don’t know. I’ll threaten you with a knife and see how, how your mind is at the time.
 On 12 August 2016, the police prepared a photo-board montage containing colour photographs of eight young clean shaven Caucasian men with similar browncoloured hairstyles to ascertain whether the complainant was able to identify any of the offenders in the aggravated robbery. The police showed the photoboard to the complainant. He identified Mr Galloway as the person he knew as Sonic and as one of the offenders in the aggravated robbery five days earlier.
 Counsel for Mr Galloway submits that a miscarriage of justice has occurred through the police use of the photo-board to identify Mr Galloway as one of the offenders. He says there was good cause not to follow such a formal identification procedure for two reasons. First, Mr Galloway had relatively recently stayed with the complainant for a sufficient length of time for him to be able to recognise Mr Galloway. Second, the complainant had recognised Mr Galloway when he saw his photograph on Police Ten 7 as the man who had stayed with him relatively recently. The police also used the same photograph of Mr Galloway on the photoboard as had been broadcast on Police Ten 7.
 Counsel submits that it was therefore inevitable that the complainant would pick the photograph of Mr Galloway in the photoboard as one of the offenders. Counsel argues that in reality the complainant was only picking the man who had stayed with him and whose photograph had appeared on Police Ten 7 because he recognised him from these previous occasions.
 The admissibility of visual identification evidence, such as the photoboard shown to the complainant in the present case, is governed by s 45 of the Evidence Act 2006. It provides:
45 Admissibility of visual identification evidence
(1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.
(2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
 In Harney v Police, the Supreme Court found that the fact that a witness recognises an alleged offender can constitute a good reason not to conduct a formal identification procedure. The Court stated:
When the witness knows the offender, the witness is likely to be able to offer a more reliable opinion as to identity. The carrying out of a formal identification procedure may then be of no practical utility, and even create a false impression of the reliability of the identification, when in reality the witness has simply pointed to a person previously known to the witness.
 The fact that a witness recognises an offender does not, however, automatically mean that a formal identification procedure should not be followed. Much will depend on the circumstances of the case. Here, the complainant told police that one of the offenders was a person he knew as Sonic, who had stayed in his sleepout for a few weeks not long before. The complainant said he did not know his name until he saw his photograph later on Police Ten 7.
 Furthermore, when he had stayed in his sleepout Sonic had only come into his house on a couple of occasions for a shower. The complainant’s association with Sonic was therefore neither long enough or close enough for him to know his name.
 The photoboard was shown to the complainant on 12 August 2016. It was only when Mr Galloway was interviewed six months later that he acknowledged that one of his nicknames was Sonic. In those circumstances, the police cannot be criticised for utilising a formal identification procedure to confirm that the man the complainant knew as Sonic was in fact Mr Galloway.
 In any event, the prosecutor very fairly in his closing address drew the jury’s attention to the limitations of the identification through the use of the photoboard. He stated:
We know that this chap, Sonic, stayed with [the complainant] for a couple of weeks shortly before [the complainant] made this identification to Detective Sergeant Clayton. It is quite possible, and indeed probable, that Mr Kingan may have so quickly recognised Sonic on the photo board because he did stay with him. [The complainant’s] ID of Sonic does not prove that Sonic was the one who robbed him that morning. What it proves is that Sonic was this defendant David Galloway and indeed in his interview with Detective Constable Todd the defendant did not deny that.
 We therefore do not consider that a miscarriage of justice may have occurred through the use of the photoboard to identify Mr Galloway.
Ground three: improper reference to Mr Galloway not giving evidence
 During his closing address, the prosecutor stated:
So the question, as I have said, is do you believe [the complainant]? But perhaps another question that might assist, why should you believe [the complainant]? The Crown say that you should prefer his testimony to the story that the defendant’s [sic] told Detective Constable Todd. [The complainant] appeared in front of you, he let his version of events, his testimony, be tested, he was crossexamined on it for, by my counting, about 45 minutes and at no point during that cross-examination did he ever waiver on the evidence or change any of the important points.
[The complainant] was consistent and he held up well to cross-examination on those essential elements.
When you retire to consider your verdicts I invite you to compare [the complainant’s] evidence to the statement that Detective Constable Todd told us that the defendant gave police. I submit to you that the defendant was being evasive.
When you compare those two statements, those versions of events, [the complainant’s] in one hand and Mr Galloway’s in the other, I invite you to do it with a realistic eye.
You have to make a judgement call as to who is lying here.
Was the person who got up on the stand, had his evidence tested, stood up well to those tests and whose evidence was consistent throughout, was he lying? Or was it the person who wanted to know what police had before he spoke to them, the person whose story changed? 'No I don’t know him,' 'Oh, yes, actually I do know him,' 'Actually I stayed with him as well.' Is he lying? Do you believe [the complainant]?
 Counsel for Mr Galloway submits that the prosecutor’s remarks breached s 33 of the Evidence Act, which prohibits a prosecutor from commenting on the fact that a defendant did not give evidence at his trial.
 Counsel says the prosecutor’s argument was that one of the two people involved here was lying, and that the jury could work out who that was by comparing their two accounts. The points of comparison (in effect, points of contrast) that he highlighted were that the complainant:
(a) appeared in front of the jury;
(b) let himself be cross-examined on his version of events; and
(c) did not waiver or change on any important point.
 Counsel says the prosecutor then invited the jury to compare this analysis of the complainant’s evidence with Mr Galloway’s version. On the basis of these three points of comparison that he had set up, the jury were told that Mr Galloway:
(a) made a statement to a police officer;
(b) wanted to know what police had before he spoke to them; and
(c) was evasive and changed his story.
 Counsel submits that the prosecutor’s comments were structured so that he provided a contrast between the complainant and Mr Galloway on each of these three points. In doing so, he invited the jury to find Mr Galloway’s version was less credible and reliable because he did not give evidence and did not make himself available for crossexamination.
 A prosecutor is not permitted to comment on the fact that the defendant did not give evidence at his or her trial. Section 33 prohibits any comment by the prosecutor on that topic - not simply negative ones. Such comments can be implied or express. Section 33 of the Evidence Act provides:
33 Restrictions on comment on defendant’s right of silence at trial
In a criminal proceeding, no person other than the defendant or the defendant’s counsel or the Judge may comment on the fact that the defendant did not give evidence at his or her trial.
 The purpose of the prohibition is to preserve a defendant’s right to silence. He or she should not feel pressured to give evidence to counter possible comment by a prosecutor that his or her failure to give evidence is in some way indicative of his or her guilt.
 This Court confirmed in R v L that there is a distinction between commenting on the weight to be given to an unsworn statement of a defendant and commenting on the defendant’s failure to give evidence. The former is permissible; the latter is not.
 In R v L this Court referred to instructive Australian authorities. In Bataillard v The King, the High Court of Australia held that a comment by the prosecutor that the statement by the defendant was not on oath was permissible. But the Court explained that the prosecutor was not allowed to point out to the jury, directly or indirectly, that the defendant had the right to give evidence on oath but failed to do so. The Court said:
If, however, reference, direct or indirect, and either by express words or the most subtle allusion, and however much wrapped up, is made to the fact that the prisoner had the power or right to give evidence on oath, and yet failed to give, or in other words, 'refrained from giving,' evidence on oath, there would be a contravention of the sub-section now under consideration.
 Whether a prosecutor’s comment crossed the line into the impermissible will be a question of fact - it will depend on the words used and the circumstances in which they are used.
 In Bridge v The Queen, the trial Judge had pointed out that the defendants’ statements were not on oath and that they were 'made without the sanction of the oath from the dock'. The High Court of Australia confirmed that the Judge could draw attention to the unsworn and untested character of a defendant’s statement and compare its weight with that of a sworn and tested statement. However, the Court noted that there were 'very narrow limits within which such a statement must be confined if it is not to amount to a comment on the accused’s failure to give evidence'. The Court considered that reference to the 'dock' was unnecessary for the purpose of assessing the statement’s weight and tended to draw attention to the defendant’s failure to give evidence. The line between what is permissible and what is not is 'fine one' and 'scrupulous caution' must be exercised.
 In R v Cormack, the trial Judge pointed out in summing-up that an unsworn statement had 'less cogency' than a statement given on oath. The majority considered that the statement, in context, did not draw the jury’s attention to the defendant’s election not to give evidence. Lee J noted that:
The direction, on the face of it, does two things: it first of all draws attention to the difference between sworn evidence and a statement made by an accused, and then it goes on to tell the jury that it is for them to give the statement such weight as they think it deserves.
 In the present case, Mr Galloway did not give evidence. However, he was interviewed and made a statement to the police. At the outset, he was formally advised of his right to remain silent. Initially, Mr Galloway denied knowing the complainant or the address at which the aggravated robbery took place. Mr Galloway then tried to ask the police officer several questions. It was explained to him that he would be asked for his account. In addition, the complainant’s statement would be put to him for his comment. It was then that Mr Galloway admitted knowing the complainant and the address where he lived.
 This was all in evidence before the jury. As noted by counsel for Mr Galloway, the prosecutor told the jury that Mr Galloway made a statement to the police officer, wanted to know what the police had before he spoke to them and was evasive and changed his story. There was nothing wrong in the prosecutor doing so.
 It is also true that the complainant gave evidence in front of the jury and was crossexamined by defence counsel. Again, there was nothing wrong in the prosecutor drawing this to the attention of the jury and in making the submission to them that he did not waiver or change on any important point.
 What counsel for Mr Galloway complains about is the prosecutor making a direct comparison between the two as he says that comparison was, in effect, a comment about Mr Galloway not giving evidence at his trial.
 We are of the view, however, the prosecutor was entitled to comment on the reliability of evidence given at trial. That evidence included the statement Mr Galloway gave to the police after having been advised of his right to silence. If Mr Galloway had chosen not to make a statement to the police, the prosecutor could only have commented on the reliability of the complainant’s evidence, which he likely would have done in much the same terms. But no comparison would have been able to have been made.
 The purpose of the comparison was to contrast the reliability of the complainant’s evidence and the defendant’s statements in an attempt to persuade the jury that Mr Galloway was lying when he said in his statement that he was not involved in the aggravated robbery. To find Mr Galloway guilty, the jury had to be satisfied that Mr Galloway was
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lying when he said he was not involved. That is what the prosecutor referred to when he said: 'you have to make a judgment call as to who is lying here'.  The prosecutor’s comment does, however, highlight that the complainant got into the witness box, when comparing his evidence to the appellant’s statement and telling the jury that they had to decide who was lying. It is not a big leap to then think that the appellant did not give evidence. The prosecutor’s comment, when viewed in context, comes close to crossing the line into the impermissible. Ideally, 'scrupulous caution' should be exercised by prosecutors to ensure that they steer clear of that line. But ultimately, in the present case, we are satisfied that the prosecutor’s comment was not directed at Mr Galloway’s choice not to give evidence at his trial. As in R v L, the comment was a 'submission on the weight to be given to the evidence of the complainant and the appellant respectively rather than a comment on the latter refraining from going into the witness box'.  Again, there is no record of defence counsel asking the Judge to abort the trial because of the prosecutor’s impermissible remarks. The experienced trial Judge also did not see anything amiss in the address. He properly directed the jury that Mr Galloway’s statement was part of the evidence before them and the weight placed on it was a matter for them. Both the prosecution and the Judge emphasised the burden on the prosecution to prove the case against Mr Galloway and explained that there was no onus on Mr Galloway to prove that he was innocent and that there was no requirement or expectation that he would give evidence or call other people as witnesses.  In those circumstances, we are of the view that the prosecutor’s comments did not breach s 33 of the Evidence Act. Result  The matters complained of, either individually or cumulatively, did not lead to an unfair trial. There has been no miscarriage of justice.  The appeal is dismissed. ------------------------------------------------------  R v W (CA473/97) CA473/97, 19 March 1998 at 5.  Edmonds v R  NZCA 152 at  (footnotes omitted).  Harney v Police  NZSC 107,  1 NZLR 725.  At .  R v L  1 NZLR 53 (CA) at 55.  At 54.  Bataillard v The King  ArgusLawRp 65; (1907) 4 CLR 1282.  At 1291.  At 1291.  Bridge v R  HCA 73; (1964) 118 CLR 600 at 608. We note that in New Zealand s 33 of the Evidence Act 2006 permits a Judge to comment on the fact that the defendant did not give evidence at his or her trial.  Bridge v R, above n 10, at 605.  At 605.  At 605.  R v Cormack (1979) 1 A Crim R 471 (NSWCCA) at 472.  At 473.  At 474.  R v L, above n 5, at .