A.S. v Police

[2014] NZHC 503

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF APPELLANT PROHIBITED BY ORDER UNDER S 201 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-300 [2014] NZHC 503

BETWEEN  "ALAN SHORE" Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   10 March 2014

Appearances:           K Maxwell for Appellant

B Hamlin for Respondent

Reasons for

Judgment:

18 March 2014

REASONS JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 18 March 2014 at 4:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

A.S. v NEW ZEALAND POLICE [2014] NZHC 503 [18 March 2014]

Introduction

[1]      This case underlines the importance of defence counsel in a criminal trial obtaining clear written instructions from a defendant on the important and often difficult issue of whether the defendant should give or call evidence.  Counsel are under a duty to advise the defendant on the advantages and disadvantages, and the potential implications, of their election.  Counsel should express their opinion as to the appropriate decision, but make it clear that the final decision about giving or calling evidence must be made by the client.

[2]      Immediately after hearing evidence and counsel’s submissions in respect of this appeal against conviction on two assault charges, I allowed the appeals and remitted the case to the District Court for rehearing.  These are my reasons for doing so.

[3]      I  make  an  order1   forbidding  publication  of  the  appellant’s  name  on  the grounds that publication might lead to the identification of the complainant whose name is automatically suppressed.2    In this judgment the appellant is referred to as

‘Alan Shore’ or ‘Mr Shore’. The complainant is referred to as ‘P’.

Procedural background

[4]      On  10 June 2013,  following  a  summary  defended  hearing  before  Judge Russell Collins in the North Shore District Court, Alan Shore was convicted of indecent assault and, being a male, assaulting a female.  The complainant, P, was the appellant’s   ex-wife  and   the  mother  of  their  two   children.      Mr Shore  was subsequently sentenced to imprisonment for two years six months on the charge of indecent assault and to a concurrent term of three months’ imprisonment on the charge of assaulting a female.

[5]      The grounds set out in the Notice of Appeal were that trial counsel did not follow Mr Shore’s instructions or allow him to give evidence in his defence, and that

she did not say the things that Mr Shore wanted her to say.

1      Pursuant to the Criminal Procedure Act 2011, s 200(1).

2      Criminal Procedure Act 2011, s 203(1).

[6]      At the hearing, Mr Shore and his trial counsel, Ms Liesje Garraway-Lina, were cross-examined on the affidavits they had filed concerning the circumstances in which Mr Shore gave counsel his instructions, and on the course of the District Court hearing.

[7]      To explain more fully the grounds of appeal and my reasons for quashing the convictions, it is necessary to set out the factual background to the prosecution, and the Judge’s findings.

Background facts and findings

[8]      On 19 December 2012, the Police were called to P’s home.  P and Mr Shore were engaged in a heated argument at the time the Police arrived.  After P made a complaint of assault,  Mr Shore was  arrested.   The Police officers who attended described  Mr Shore  as  hostile  towards  them  and  he  was  charged  with  resisting Police, to which he later pleaded guilty.

[9]      P gave evidence at trial that, although they were no longer living together, she had agreed to collect Mr Shore from a work function and let him sleep on her couch. She  said  he  was  intoxicated  and  made  unwanted  and  forceful  sexual  advances towards her, which included throwing her onto the couch and holding her down by lying on top of her.  She said that her trousers were ripped off and thrown across the room during the struggle but that Mr Shore did not remove any of his clothing at any time.   She said  she  screamed out  and  things  came to  an  end.    It  appears  that neighbours called the Police.  An attending Police officer found on the living room floor a button which had become detached from P’s trousers.

The District Court Judge’s decision

[10]     In his oral decision, Judge Collins noted that P was a careful witness who was not dramatic in any way and did not exaggerate her complaints against Mr Shore. He said she became angry when it was suggested to her in cross-examination that she was not telling the truth.  The Judge said he “viewed her narrative against the undisputed facts in the case as being inherently credible” and said that “there was no

suggestion of anything which would make it inherently incredible.”3     The Judge noted that P’s narrative was consistent with the actions of the neighbours in calling the Police and that her evidence was supported by the finding of the button.  The Judge concluded that there was no alternative explanation as to how the button was detached from her trousers other than the one she provided.

[11]     The Judge noted that it had been put to P in cross-examination that what in fact had occurred was an argument between Mr Shore and P because Mr Shore had raised questions about P’s care of their children and had made threats to involve Child, Youth and Family and the Police.   He recorded that those propositions had been rejected by the witness and said that there was no evidence to support the allegation that she had made up the complaint for those reasons.

[12]     Mr Shore did not make a statement to the Police but commented that no one would believe P’s allegations.  He did not give or call evidence at the trial.

Findings on appeal as to the involvement of trial counsel

[13]     After having read the affidavits filed by both Mr Shore and Ms Garraway in respect of the appeal, and having had the advantage of seeing them cross-examined, I am  satisfied  that  there  is  no  substantial  disagreement  between  them  as  to  the circumstances in which Ms Garraway took instructions, prepared for the hearing and provided advice and representation to Mr Shore.

[14]     When Ms Garraway first took instructions she noted that the appellant said that P’s story was fabricated.  Mr Shore told counsel he accepted that he had grabbed P’s shoulders when she was hitting him on the chest, after he had threatened to take the children from her because she often left them by themselves.  Ms Garraway took more detailed instructions from Mr Shore in a lengthy telephone conference a few days  before  the  defended  hearing.    It  is  clear  from  her  file  that  she  prepared diligently  for  the  defended  hearing,  including  typing  up  a  note  summarising Mr Shore’s instructions to be used as an aide memoire by her in the event that

Mr Shore should be called as a witness.  Counsel regarded her handwritten notes of

3 At [26].

the detailed instructions received by telephone as her client’s brief of evidence.  She also prepared notes for cross-examination of the complainant and the other prosecution witnesses.

[15]     I  accept  Ms Garraway’s  evidence  that  prior  to  the  hearing  she  advised Mr Shore of the consequences of his giving evidence, including the prospect that he would be cross-examined on his previous convictions for assaulting P, threatening behaviour and some 20 offences involving dishonesty.

[16]     Although Mr Shore complained that he had been “told” by defence counsel not to give evidence, I am satisfied after the concessions he made in cross- examination that his allegation went no further than saying he believed he had been advised not to give evidence and that he had  relied on that advice.   There are differences   in   the   recollections   of   Mr Shore   and   Ms Garraway   as   to   the circumstances in which the trial Judge invited Mr Shore to make the election about giving evidence at the close of the prosecution case.   It appears to be common ground, however, that counsel and her client did not actually discuss that matter before counsel indicated to the Judge that there would be no defence evidence.

[17]     Ms Garraway accepted under questioning by Ms Maxwell that the defence to the charge of assaulting a female was self-defence.  Mr Shore’s instructions were that he had placed his hands on the complainant only to prevent her from continuing to hit him on the chest.  Ms Garraway also acknowledged that the defence to the charge of indecent assault was that the complainant’s evidence was fabricated and that no such assault occurred.  In those circumstances, she accepted that the case would be determined on the basis of the credibility of the complainant’s account and agreed that as a general rule the defence would call evidence in such a case.  She said she could not recall any other similar defended hearing where evidence had not been called by the defence.   Ms Garraway said it was her understanding prior to the commencement of the hearing that Mr Shore would be giving evidence consistently with the handwritten statement she had taken and her summary notes.

[18]     Ms Garraway acknowledged that in her cross-examination of the complainant she had not prefaced her questions by stating that Mr Shore would give evidence;

that may have been because she wanted to leave open the option of his not doing so. Ms Garraway could not recall precisely the terms in which she advised Mr Shore, prior to the hearing, about the election but said that “she would have said” it was her view that Mr Shore should give evidence but that if he did so he would need to understand that certain things would be brought up.

[19]     Counsel’s  concern  about  the  prejudicial  effect  of  cross-examination  on Mr Shore’s previous convictions for assault and threatening behaviour may have been misplaced.   Ms Garraway confirmed that the prosecution had not given any notice that it intended to rely on Mr Shore’s previous convictions as propensity evidence, so it is unlikely that evidence of his criminal history would have been admissible.4

[20]     Mr Shore’s recollection was that at the close of the prosecution case, there was a 10-minute “stand down period” during which he left the courtroom to speak to his mother who was outside the court in a car with his nephew.  He said that there was no discussion between counsel and him at that stage about his giving evidence and that when the Judge returned he asked Ms Garraway if there was going to be any evidence called.  Mr Shore said that Ms Garraway was speaking to another lawyer next to her and then she stood up and said “No” and that was the end of the hearing.

[21]     Ms Garraway accepted in cross-examination that, at the time the Judge asked about the defence election, there was an element of uncertainty on Mr Shore’s part as to how he should proceed.  She said she was concerned at the end of the prosecution case that the complainant had not made any concessions regarding the propositions Ms Garraway put to her on the basis of her instructions.  She acknowledged having concerns that there was not going to be any evidence that the Judge could take into account as far as Mr Shore’s denial was concerned.  Ms Garraway conceded frankly that, with the benefit of hindsight (as she put it), it would have been appropriate to sit down with Mr Shore; go through the problems with the evidence which had been given as she saw them; and take very careful instructions from him as to whether he

wanted to give evidence.

4   Evidence Act 2006, ss 8, 40 and 43.

[22]     Counsel did not do that, however.   Ms Garraway said that when the Judge asked her about the defendant’s election she stood up and looked at Mr Shore, who was seated beside her.  She said Mr Shore told her it was up to her.  Ms Garraway said that she “had made it very clear that it was always up to him as to whether or not he wanted to give evidence.”   She said that he did not react when she asked about his election and that she “assumed and inferred from that that he did not want to give evidence anymore.”  Counsel told the Judge there would be no evidence from the defence.

The law

[23]     In appeals based on error by trial counsel the Court is required to decide whether an error was made and, if so, whether there was a real risk it affected the outcome of the hearing.  Such questions are posed to help the Court to determine the overall issue of whether there has been a miscarriage of justice.5

[24]     In applying these principles, an appellate court must be mindful that, while it can often be argued with the benefit of hindsight that a different decision could have been made by counsel on an important issue such as whether or not to call defence evidence,  that  does  not  make  the  decision  taken  unreasonable  or  wrong  in  the

circumstances in which trial counsel made it.6   If there has been an error, an appeal

will be successful only if the appellant can establish “a real as opposed to a speculative risk of an unsafe verdict and must show that the impugned conduct of counsel has clearly caused that risk.”7

[25]     On the particularly important question of a defendant’s election about giving evidence, counsel’s duty is to put before the client all the advantages and disadvantages of giving evidence to ensure that the client makes an informed choice in the circumstances.  The duty extends as far as offering advice about which course is appropriate, but it should be made entirely clear that the decision whether or not to

give evidence is that of the client and that the client may reject counsel’s advice.8   In

5      Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [70].

6      Manukau v R [2013] NZCA 605 at [3].

7      Sungsuwan, above n 5, at [116].

8      Chambers v R [2011] NZCA 218 at [5]; R v S [1998] 3 NZLR 392 (CA) at 396.

appropriate cases the circumstances will be such that counsel has a duty to advise a defendant that conviction is inevitable unless defence evidence is given.9    This is likely to be the case where there is a line of defence open to the defendant but no evidence before the Court to support it;10  merely putting the defendant’s version of events to a witness in cross-examination may not be sufficient.11

[26]     It is unnecessary for me to resolve the issue of whether there was a 10-minute break at the close of the prosecution case, during which counsel would have had the opportunity to provide further advice to Mr Shore about whether he should give evidence and to take his clear instructions.   Any trial Judge would have afforded counsel an opportunity to confer with her client at that stage, including by retiring briefly if necessary, and I have no doubt that Judge Collins would have done so in this case if asked.  But Ms Garraway did not seek that opportunity.  It is clear from her account that she neither advised the appellant on the prospects of conviction having regard to the way in which the complainant had given evidence, nor that she obtained a clear instruction from Mr Shore that, contrary to her prior understanding, he did not wish to give evidence.

[27]     The uncertainty between counsel and Mr Shore would have been avoided if counsel had taken the rudimentary step of requiring her client to sign a written instruction which noted the advice counsel  had given  and which  confirmed the client’s election about giving evidence.  The Court of Appeal has accepted it as well settled that counsel should obtain instructions in writing as to whether a defendant

will give evidence.12

[28]     The result of what happened in this case was that Mr Shore did not actually make a choice about giving evidence, let alone an informed one.   Further, in the particular circumstances, Ms Garraway was under a duty to ensure that her client understood that the state of the evidence at the close of the prosecution case meant

his conviction on both assault charges was inevitable unless he gave evidence, to

9      McNaughton v R [2011] NZCA 588 at [29].

10     See, for example, R v Pointon [1985] 1 NZLR 109 (CA).

11     See, for example, W v R [2012] NZCA 238.

12     Chambers, above n 7, at [1].

contradict that of the complainant, which might have raised a reasonable doubt in the mind of the Judge.

[29]     The  test  stated  by  Tipping  J  in  Sungsuwan  of  “a  real  as  opposed  to  a speculative risk of an unsafe verdict”13 requires a consideration of the nature of the error in the context of the issues at trial.  In the present case there was undoubtedly evidence   tending   to   confirm   the   complainant’s   allegations,   but   it   was   not unequivocal and the accusation by Mr Shore that P fabricated her evidence because of  his  threats  to  remove  the  children  was  not  wholly  implausible.    Moreover,

Mr Shore had maintained prior to the hearing that he wished to give evidence and Ms Garraway confirmed that she understood those to be his instructions when the trial began.  The evidence falls well short of establishing that he made an informed decision to change these instructions to counsel.   It was Mr Shore’s right to give evidence if he chose to do so, even if there could have been no certainty that he would be acquitted as a result.   He was not given an opportunity to exercise that right.

[30]     In such circumstances, I concluded that a miscarriage of justice had occurred and that the convictions must be quashed.14

[31]     I was also satisfied, however, that there was a strong case to be answered by the defence and that the charges should be remitted to the District Court for retrial, if the prosecution elected to follow that course.  Orders were made accordingly.

……………………………….

Toogood J

13     Sungsuwan, above n 4, at [116].

14     Refer to Chambers, above n 7.