Bull v The Queen - [2005] NZSC 80

IN THE SUPREME COURT OF NEW ZEALAND
SC 48/2005
[2005] NZSC 80
RICHARD GEOFFREY BULL
v
THE QUEEN
Court:Elias CJ and Blanchard J
Counsel:J Haigh QC for Applicant

B J Horsley for Crown

Judgment:8 December 2005

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.
REASONS
[1]       The applicant seeks leave to appeal against the dismissal by the Court of Appeal of his appeal against conviction for sexual offending involving three teenage boys. The application is made well out of time and an extension of time is sought. The main ground of appeal was that the applicant’s representation by trial counsel was inadequate. In relation to convictions for sexual violation in respect of the first complainant, it was said that counsel had (contrary to the applicant’s instructions) failed to run the defence that the offending had not occurred at all, in addition to a defence of consent. In relation to the indecent assaults relating to the other complainants, it was contended that trial counsel had failed adequately to put to the complainants the sole defence which was that the offending had not occurred to the complainants.
[2]        The matters of complaint about the conduct of the defence by trial counsel were fully considered by the Court of Appeal. Both the applicant and trial counsel filed affidavits and were cross-examined. To the extent that their accounts conflicted, the Court of Appeal accepted the account given by trial counsel. Although the Court of Appeal judgment was delivered before the decision of this Court in Sungsuwan[1] the Court of Appeal correctly recognised that ultimately the issue was whether there was a real risk of miscarriage of justice.
[1] [2005] NZSC 57.
[3]        All elements of the offences were in issue at trial. In respect of the first complainant, the defence (in accordance with the written instructions given by the applicant to his counsel at trial) concentrated upon the issue of consent without conceding that the physical acts occurred. Accordingly, the jury was instructed by the trial judge that it was required to find proved both the physical acts of penetration and the absence of consent or reasonable belief in consent. The Court of Appeal took the view that the issue of consent in respect of the first complainant was one which competent counsel would pursue, as it was here with the consent of the applicant, because it was plainly tenable on evidence of co-operation and association between the complainant and the applicant over a comparatively lengthy period. No error of principle is raised in respect of the approach of the Court of Appeal. It considered on the evidence, including the written instructions given by the applicant to his counsel at trial, that there was no risk of miscarriage of justice. The Court found that Mr Bull understood the choices he was given by defence counsel and chose to accept the advice to give priority to the issue of consent in relation to the first complainant and to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bull v The Queen

Details

AGLC: Bull v The Queen [2005] NZSC 80
Case: [2005] NZSC 80
Decision Date: 8 December 2005

CaseChat Overview and Summary

The Supreme Court of New Zealand, consisting of Elias CJ and Blanchard J, was presented with an application for leave to appeal by Richard Geoffrey Bull against the dismissal of his appeal by the Court of Appeal against his conviction for sexual offences involving three teenage boys. The applicant sought an extension of time for the application and contended that his trial counsel’s representation was inadequate, particularly in relation to the defence strategy concerning the first complainant. The applicant argued that counsel should have run the defence that the alleged offending had not occurred at all, in addition to a defence of consent. For the other two complainants, the applicant claimed that counsel had failed to adequately put to them the sole defence that the offending had not occurred.

The legal issues before the Court were whether there was a real risk of miscarriage of justice due to the alleged inadequacies in the applicant’s trial counsel’s representation. The Court of Appeal had already considered the complaints about the conduct of the defence by trial counsel, accepting trial counsel’s account where it conflicted with the applicant's. The Court of Appeal concluded that the defence counsel had acted with competence and in accordance with the applicant's instructions, and that there was no real risk of miscarriage of justice. The Supreme Court found that the Court of Appeal's reasoning and conclusions were sound. The applicant's chosen defence strategy, which was to focus on consent for the first complainant and to leave the denial of the fact of the offending to the jury, was within the bounds of reasonable competence. The Court of Appeal correctly determined that there was no error of principle and no basis for doubting its conclusions.

The Supreme Court found that the applicant had not demonstrated that there was a matter of general or public importance or any risk of miscarriage of justice. As a result, the application for leave to appeal was dismissed, and the applicant's appeal against his convictions was denied. Since the appeal against sentence could only succeed if the appeal against the convictions succeeded, the appeal against sentence was also dismissed.

Orders