Cable v The King
[2023] NZCA 317
•24 July 2023 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA3/2022 [2023] NZCA 317 |
| BETWEEN | DARKIE THOMAS CABLE |
| AND | THE KING |
| Hearing: | 12 June 2023 |
Court: | Courtney, Peters and Mander JJ |
Counsel: | W T Nabney and R E Nabney for Appellant |
Judgment: | 24 July 2023 at 11 am |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Mander J)
On the morning of his trial, Mr Darkie Cable pleaded guilty to the murder of his partner, Ms Sam Reid.[1] He was sentenced to life imprisonment with a minimum period of imprisonment of 12 years.[2] He appeals his conviction, claiming the circumstances in which he entered his guilty plea resulted in a miscarriage of justice.
[1]Crimes Act 1961, s 160(2)(a) and 167(b).
[2]R v Cable [2021] NZHC 3129 [Sentencing notes].
Mr Cable also pleaded guilty to charges of injuring Ms Reid with intent to cause grievous bodily harm.[3] These charges arise from an earlier assault committed some four weeks prior to her death. He does not challenge his guilty pleas to those charges.
Background
[3]Section 189(1).
Following Mr Cable’s guilty pleas, he was sentenced on the basis of the following factual narrative, conveniently summarised by Muir J in his sentencing notes:[4]
[4]Sentencing notes, above n 2.
[9] The summary of facts to which Mr Cable pleaded guilty records that he and Sam Reid were in a relationship of approximately 13 years duration. They have two young children. Police have recorded five family harm incidents between Mr Cable and Ms Reid between 2008 and 2020.
[10] At around 6.00 pm on 26 December 2019, Mr Cable and Ms Reid were at Ms Reid's parents' address. They were celebrating Boxing Day with family. All present were consuming alcohol.
[11] An argument between Mr Cable and Ms Reid ensued and quickly escalated. The apparent catalyst was some minor perceived error in the way Ms Reid had parked her car. Mr Cable dragged Ms Reid outside by her hair and assaulted her in front of their family and friends. He rained punches down on her, causing her to fall to the ground. There, Mr Cable kicked her multiple times about her head and torso. He then dragged her by her hair to an isolated area around the side of the address.
[12] Attempted interventions by various relatives were unsuccessful, with Mr Cable threatening that they should “stand there and watch or I’ll smash you”. He continued his assault on Ms Reid, punching and kicking her until confronted by a neighbouring resident.
[13] Ms Reid then fled the address and sought refuge at a relative’s home. Mr Cable returned to the Boxing Day celebrations. These events gave rise to Mr Cable’s first charge of injuring with intent to cause grievous bodily harm.
[14] At around 10.00 pm, Mr Cable announced his intention to “go and fucking find” Ms Reid. He left the address to search for her.
[15] Ms Reid returned to the address around 15 minutes later. Mr Cable himself returned shortly afterwards.
[16] Mr Cable approached Ms Reid, saying “fuck you bitch”. He punched her in the head with enough force to send her head through the cladding of the wall next to where she was standing. He again grabbed Ms Reid by her hair, then threw her down a flight of stairs and forced her into a nearby vehicle.
[17] Mr Cable then announced he would “smash” Ms Reid in front of her cousin and that he would “smash all these cunts”. He proceeded to drag her by her hair to an isolated area around the side of the address. He again kicked and punched her in the head several times. He continued to issue threats.
[18] Ms Reid eventually got up from the ground and asked her cousin to phone the Police. She went to the bathroom to clean herself up. Mr Cable followed.
[19] When Police arrived at the address, Mr Cable met them in the hallway. He refused to accompany them outside, instead jumping out of a bedroom window and fleeing. These events gave rise to Mr Cable’s second charge of injuring with intent to cause grievous bodily harm.
[20] As a result of this ordeal, Ms Reid suffered extensive bruising to her head, face and torso. She also suffered a conjunctival haemorrhage around her right eye.
[21] Sometime after the events of Boxing Day 2019, Mr Cable, Ms Reid and their two children relocated to a rural property in [Taupō]. The property consists of a Portacom building and a nearby dilapidated house. It adjoins neighbouring land occupied by Mr Cable's half-brother, Mr Mita, and Mr Mita's partner, Shannon Ohlson.
[22] At around 10.00 am on 25 January 2020, Mr Cable, Ms Reid and their two children were at the [Taupō] address. Mr Cable told Ms Reid to retrieve some of his personal items from his car. She did so, but did not retrieve everything he wanted, in particular his Mongrel Mob gang patch.
[23] Mr Cable became enraged. He assaulted Ms Reid on a grassy area between the Portacom building and the house. He punched her, causing her to fall to the ground. When she attempted to stand back up, he continued to punch her to the ground. Her children could hear her screams from inside the Portacom building where they were located. One witnessed the attack, describing Mr Cable as having used what may have been a wooden post to hit Ms Reid.
[24] There is some uncertainty about whether Mr Cable did, in fact, use a weapon to strike Ms Reid. In any event, the violence was forceful enough to knock her unconscious.
[25] Mr Cable left Ms Reid lying on the ground. He then drove to Mr Mita and Ms Ohlson's neighbouring address. He instructed Ms Ohlson to come with him. The two returned to where Ms Reid was lying. They lifted Ms Reid, carried her into the Portacom building and placed her on a mattress. Ms Ohlson then went back to her house and sought Mr Mita's help.
[26] Mr Cable instructed Ms Ohlson, Mr Mita and his children to tell emergency services that he was not there, and that Ms Reid had sustained her injuries by falling off the deck of the dilapidated house. He then left the Portacom building and hid at Mr Mita and Ms Ohlson's neighbouring address.
[27] Emergency services later arrived at the [Taupō] address. Mr Cable lay low. He did not make himself known to paramedics, nor did he give any aid.
[28] Ms Reid was taken by ambulance to a nearby location to await an airlift to Waikato Hospital. Mr Cable drove to where the ambulance was stopped, telling paramedics that he was Ms Reid's partner and that someone had phoned him to tell him she had been taken away by ambulance. He told paramedics Ms Reid had been renovating the house and that she had been drinking heavily recently and taking marijuana. He did not give any information that could assist paramedics in treating her injuries.
[29] Ms Reid was then airlifted to Waikato Hospital, where she was placed on life support. Her injuries were non-survivable, and her life support was turned off the next day.
[30] On speaking with Police, Mr Cable denied he had been at the property when Ms Reid sustained her injuries. He said he had driven to attend his cannabis plants near the State Highway 5 and Ohaaki Road area. He claimed that when he had returned home, Mr Mita had told him that Ms Reid had been taken away by ambulance. All these claims were of course false.
The appeal
Mr Cable advanced his appeal on the basis he was misled by his trial counsel’s advice regarding the potential sentence he may face depending on whether he pleaded guilty or proceeded to trial. He variously claimed, initially in his affidavit filed in support of his appeal, he was informed that should he plead guilty he would receive a “start point of 13 to14 years prison instead of life without parole.” In oral evidence, Mr Cable claimed his counsel told him he “would get 10 years, nothing over” and would not receive life imprisonment.
It was also argued that the information provided to him on the morning of his trial was conveyed in a “hurried manner” where neither he nor his counsel gave proper consideration to whether he should plead guilty. It was suggested that “unreasonable pressure” was placed on Mr Cable to plead guilty because, under the three strikes legislation, he was liable upon conviction to a sentence of life imprisonment without parole or the imposition of a minimum period of imprisonment of 20 years unless the court held such a sentence to be manifestly unjust.[5]
[5]Sentencing Act 2002, s 86E.
It is common ground that Mr Cable was concerned about his children having to give evidence. His 11-year-old son had witnessed the fatal attack on his mother. It was argued on Mr Cable’s behalf that he was not informed or adequately advised about the alternative modes by which his children would be able to give evidence to alleviate his concerns about requiring them to testify at the trial.
In summary, it was submitted this combination of circumstances placed undue pressure on Mr Cable to plead guilty to murder, being a charge he had otherwise intended to defend, and this has resulted in a miscarriage of justice.
In response, the Crown argued Mr Cable made a free and informed decision to plead guilty, primarily to avoid his children having to give evidence. His plea was not brought about by any misapprehension regarding sentencing outcomes. Further, it was submitted his complaints about his counsel do not bear scrutiny, and, in any event, a third version of events upon which he now seeks to rely to advance a manslaughter scenario is not capable of being accepted as credible and does not provide a viable defence.
Relevant legal framework
The correct approach to conviction appeals following a guilty plea is well established. Only in exceptional circumstances will such an appeal succeed.[6] It is necessary for an appellant to show that notwithstanding their formal admission of guilt, a miscarriage of justice will result if their conviction is not overturned. Where an appellant has fully appreciated the merits of their position and made an informed decision to plead guilty, the conviction cannot be impugned.[7]
[6]R v Le Page [2005] 2 NZLR 845 (CA); R v Merrilees [2009] NZCA 59; and Nixon v R [2016] NZCA 589; R v Stretch [1982] 1 NZLR 225 (CA); and R v Ripia [1985] 1 NZLR 122 (CA).
[7]R v Le Page, above n 6, at [16].
One such exceptional circumstance that may result in a miscarriage of justice is where erroneous advice has been given by trial counsel regarding certain defences or outcomes that has induced a defendant to plead guilty.[8] It will be necessary to demonstrate, first, the advice given was erroneous; second, there is or was a genuine prospect of acquittal had the plea not been entered; and, third, there is credible evidence that but for the erroneous advice, the guilty plea would not have been entered.[9]
[8]R v Merrilees, above n 6, at [34].
[9]Whichman v R [2018] NZCA 519 at [41].
The mere fact an arguable defence is available will not by itself be sufficient. A person may plead guilty despite avenues of defence being available.[10] As noted by this Court in Merrilees v R:[11]
Later regret over the entering of a guilty plea is not the test as to whether that plea can be impugned. If a plea of guilty is made freely, after careful and proper advice from experienced counsel, where an offender knows what he or she is doing and of the likely consequences, and of the legal significance of the facts alleged by the Crown, later retraction will only be permitted in very rare circumstances.
Events preceding the trial
[10]Penniket v R [2016] NZCA 154 at [8].
[11]R v Merrilees, above n 6, at [35].
Mr Cable and his counsel, Mr Burroughs, provided affidavits regarding the preparation of Mr Cable’s defence and how events unfolded on the morning of the scheduled trial. While there was a degree of common ground, in some important respects their accounts varied. Parts of Mr Cable’s narrative were formally disputed by the Crown. Mr Burroughs, on the other hand, was not required for cross‑examination.
Preparation for trial
Over the course of a series of attendances many months before the trial, Mr Burroughs received Mr Cable’s instructions about his fatal attack on Ms Reid and his earlier assault on her. Mr Cable accepted he lied to the police about his involvement. In his new account, he informed Mr Burroughs that he had become angry with Ms Reid on the evening prior to her death because she had lost his gang patch. He had slapped her with an open hand but not punched her. The following morning, he said he slapped Ms Reid again which caused her to fall down. On each occasion he did this she had got back to her feet. She had fallen down again after he had again pushed or slapped her.
On this occasion, he heard a sound when she fell but had been walking away at that time. When Ms Reid did not follow him into the house, he went back outside to find her lying on the ground. He believed she had hit her head on the deck where a supporting pole was positioned. When he found her to be non-responsive, he went to his brother’s place for assistance. He did not think her injuries were life-threatening so did not call an ambulance himself because he knew the police were looking for him in relation to the Boxing Day assault.
Mr Cable acknowledged he had caused Ms Reid’s death and instructed his counsel that he was willing to plead guilty to manslaughter but not murder. On the basis of those instructions, Mr Burroughs made a number of requests to the Crown to accept a plea to manslaughter. These were declined, largely because of the pathology evidence which included multiple fresh injuries Ms Reid had sustained to her head that must have been the result of a serious beating.
Having reconfirmed Mr Cable’s instructions that he was responsible for his partner’s death but had not meant to kill her, Mr Burroughs prepared for trial on the basis his client was guilty of manslaughter but had not had a murderous intent at the time he assaulted Ms Reid. To that end, Mr Burroughs instructed a psychologist who was to give evidence at Mr Cable’s trial in support of his evidence that he did not mean to kill Ms Reid. That report was furnished to Mr Burroughs some two weeks prior to the commencement of the trial, and included an account that accorded with Mr Cable’s instructions.
Prior to the trial, Mr Cable advised his counsel he would plead guilty to the Boxing Day charges.
The morning of trial
Mr Burroughs’ evidence was that he had prepared for trial on the basis of Mr Cable’s instructions, and went to see him in the court cells on the morning of the trial, expecting it to proceed. However, upon his arrival, Mr Cable advised him that he did not want to go to trial. He expressed concerns about his children having to give evidence and did not want them to have to do so. Mr Burroughs approached the Crown Solicitor to discuss the possibility of accepting a manslaughter plea. The offer was again declined. However, the Crown did indicate it was prepared to accept that Mr Cable had not intended to cause Ms Reid’s death and that it had been a reckless killing.
Mr Burroughs deposed that when he returned to the court cells, Mr Cable told him he did not know what to do but that he did not want his children to suffer any more or to have to give evidence. Mr Burroughs told Mr Cable he had to make a decision as to whether to go to trial or plead to the murder charge. Mr Burroughs stated Mr Cable was adamant he did not want his children to have to give evidence. A discussion took place about the evidence, in particular about the evidence to be given by the pathologist and Mr Cable’s son. Mr Burroughs advised that the evidence, particularly that given by Mr Cable’s son, could not go unchallenged. At the end of that discussion, Mr Cable advised he was prepared to plead guilty to the murder charge.
Mr Burroughs’ evidence is that he then went to discuss the situation with the Crown Solicitor before attending on the trial Judge in chambers. A discussion took place regarding sentencing. The Crown indicated its view that the probable non-parole starting point should be around 14 years and not 17 years, presumably in reference to the potential application of s 104 of the Sentencing Act 2002 (the Act). There also appears to have been an expressed acceptance or acknowledgment, at least tacitly by the Crown and, in turn, explicitly by the Judge, that it would be unjust to impose a life sentence without parole for what would be Mr Cable’s second strike conviction. Regrettably, Mr Cable was not present during this discussion. We note that at sentencing, the Crown abided the Court’s decision on whether life imprisonment without parole would be manifestly unjust for the purpose of s 86E of the Act, which the Court ultimately found to be the case.
On Mr Burroughs’ unchallenged account, he then returned to the cells to see Mr Cable and explained to him the possible sentence to be imposed if he was to plead guilty. Having received Mr Cable’s oral instructions, that he did not want to go to trial and would plead guilty to the murder charge, Mr Burroughs had those instructions recorded in writing. Mr Cable was arraigned later that morning on all charges and pleaded guilty.
Mr Cable’s description of the events of that morning differs from those described by Mr Burroughs. He claims Mr Burroughs had already met with the Crown Solicitor and the Judge before he first saw him in the cell area of the court. In his affidavit, Mr Cable states he was advised by Mr Burroughs that the Crown Solicitor was wanting a starting point of “13 to14 years’ prison” for the murder, which he thought would be instead of a sentence of life imprisonment. In his oral evidence, Mr Cable’s evidence changed. He maintained that Mr Burroughs told him that morning that he would get 10 years’ imprisonment — “nothing over” — and would not receive a sentence of life imprisonment.
Mr Cable deposed that he and Mr Burroughs talked about him “being on my second strike which would mean I could potentially get sentenced to life imprisonment without parole”, although he alleges there was no discussion about how life without parole would not be imposed if that sentence was found to be manifestly unjust. Mr Cable maintained that Mr Burroughs told him that he thought he should plead guilty because that would result in the best sentencing outcome. He stated it was out of his concern that if he took the matter to trial and got convicted he was going to end up “being in prison for life” that he pleaded guilty to murder. He confirmed he wrote out his instructions that were dictated to him by Mr Burroughs.
Analysis
Insofar as there are discrepancies as to what took place on the morning of the scheduled trial, we prefer Mr Burroughs’ evidence. We reject Mr Cable’s evidence that Mr Burroughs had already approached the Crown and discussed a likely sentence with the trial Judge before coming to see Mr Cable in the cells. Mr Burroughs had prepared for trial on the basis of Mr Cable’s instructions that he was willing to plead guilty to manslaughter but denied being responsible for Ms Reid’s murder. There is no reason to believe Mr Burroughs would, on his own initiative, have approached the Crown on any different basis other than a willingness by Mr Cable to plead guilty to manslaughter, as he had previously done.
Nor do we consider that Mr Burroughs would have engaged with the trial Judge for the purpose of obtaining some indication of the sentence Mr Cable may receive for murder without his instructions or some advised change in Mr Cable’s stance regarding his intention to defend the murder charge. We note that Mr Nabney, who advanced Mr Cable’s appeal on his behalf, did so on the basis that on Mr Burroughs’ arrival at Court that morning, he was told by Mr Cable that he did not wish to go to trial.
We also reject Mr Cable’s claim that Mr Burroughs suggested to him that a plea to murder would not result in him receiving a sentence of life imprisonment, or that he told Mr Cable that if he pleaded guilty the prison sentence might be even less than the 13–14 years the Crown had indicated they would be seeking. As already noted, under cross-examination Mr Cable maintained he was told by Mr Burroughs that he would get “nothing over 10 years”. We do not consider that Mr Cable’s evidence regarding such representations by Mr Burroughs is tenable.
Mr Cable referred in his affidavit to having discussed with Mr Burroughs the fact he was on his second strike and that he could potentially be sentenced to life imprisonment without parole. Mr Cable also states he pleaded guilty “so [he] wouldn’t go to prison for life without parole.” We are unable to reconcile the discussion Mr Cable says he had with his counsel, focused on the risk of receiving a life sentence without parole and avoiding that outcome, with the suggestion that Mr Burroughs informed him that if he pleaded guilty to the murder he would only receive, at least on one version of Mr Cable’s evidence, a finite sentence of 10 years. We again note that Mr Nabney did not seek to advance the appeal on such an unrealistic basis.
It is convenient at this point to address a subsidiary issue regarding Mr Cable’s presentation on the morning of his trial. Mr Cable maintained he did not feel properly prepared for his trial, although he accepts he did not tell his counsel that was the case. For his part, while Mr Burroughs found Mr Cable was “quiet” when he first saw him that morning, his presentation did not give him any concern, nor did he consider him to be unprepared for trial. In support of his claim that he felt unprepared, Mr Cable stated he was worried about only having his prison clothes with him and that he “didn’t think that I would look good in front of the jury”, having been transported from prison the night before. He described wearing prison clothes which comprised a T-shirt and shorts with no shoes.
Mr Cable, however, does not mention how Mr Burroughs, as is his normal practice, provided him with clothes to wear during the trial. A published media photograph shows Mr Cable dressed in a collared shirt and trousers at the time of his arraignment. When challenged about this in cross-examination, Mr Cable asserted the photograph had been taken on a different day. However, it is a matter of record that he pleaded guilty on the morning of his scheduled trial. This is a peripheral matter but it tends to illustrate how Mr Cable did not present as a particularly credible witness upon whom much reliance could be placed. Later observations in this judgment regarding the changing accounts Mr Cable has provided about his involvement in Ms Reid’s death accord with this conclusion.
Alleged erroneous advice
We turn now to address the allegedly erroneous advice said to have been provided by Mr Burroughs to induce Mr Cable to plead guilty. The first is said to arise from Mr Cable having pleaded guilty to avoid the risk of receiving a sentence of life imprisonment without parole. Mr Nabney submitted there was no reason to think such an outcome had been achieved as a result of Mr Cable pleading guilty, or that any different result would have been obtained had he proceeded to trial. He argued that neither the particulars of the offence, nor Mr Cable’s personal circumstances, were likely to be any different had he defended the murder charge, so Mr Cable had been poorly advised to plead guilty in order to achieve such an outcome.
In addressing this complaint, it needs to be recorded from the outset that Mr Burroughs refutes that Mr Cable pleaded guilty because of a concern about the possible sentence he may receive. It was his evidence that Mr Cable’s singular concern was preventing his children from having to give evidence and that this was his main motivation for pleading guilty. It caused Mr Burroughs to initiate enquiries, first, regarding whether the Crown remained resistant to accepting a plea to manslaughter and, second, about possible sentencing outcomes. Mr Cable himself accepts he was concerned about his children, particularly his son, having to give evidence.
We are satisfied it was this concern that motivated Mr Cable to tell Mr Burroughs when he first saw him at court that morning that he did not wish to go to trial. We are also satisfied this remained Mr Cable’s overriding concern. However, Mr Burroughs, we think understandably, sought to achieve what he could for his client in light of his indicated change of instructions. As a result of Mr Burroughs’ subsequent enquiries regarding potential sentencing outcomes, he was able to provide Mr Cable with information regarding his likely sentence should he plead guilty.
After the Crown declined to accept a plea to manslaughter and Mr Burroughs returned to discuss the situation with Mr Cable, other than remaining firm about not wanting his children to have to give evidence, Mr Cable was left in a position of not knowing what to do. That resulted in further discussion between counsel and client about the pathology evidence and the son’s evidence, both contrary to Mr Cable’s account of the assault. It was after reviewing those matters that Mr Cable advised he was prepared to plead guilty to murder. We note that at that stage there does not appear to have been any discussion regarding sentencing.
On behalf of the Crown, Ms Hamill submitted this sequence of events demonstrates that Mr Cable’s decision to plead guilty was not driven by sentencing advice, but was based on an assessment of the evidence he would face at trial coupled with his strong desire to avoid his children having to give evidence about their mother’s death. We accept that is likely to have been the case at that stage, but Mr Burroughs took the additional step of instigating further discussions with the Crown, and approached the trial Judge in order to receive confirmation that sentencing would proceed on the basis of a reckless killing, and to obtain an indication about sentence. Information regarding the latter must have been of particular importance both to Mr Burroughs, as Mr Cable’s counsel, given his client’s indicated wish to plead guilty, and obviously to Mr Cable himself, as the person facing the prospect of being sentenced to life imprisonment without parole following a conviction for murder.
Accordingly, while we accept that Mr Cable had already confirmed his willingness to plead guilty to avoid his children having to give evidence, we do not consider that decision remained entirely uninfluenced by the information Mr Burroughs was able to obtain from his chambers discussion with the Crown and the trial Judge, which we are satisfied he accurately reported back to Mr Cable. The written instructions that were subsequently drafted reflect the understandable concern, no doubt shared by Mr Cable and his counsel, about the possibility of the imposition of a sentence of life imprisonment without parole.
However, having accepted that must have been the position, we do not consider anything recorded in the written instructions or represented by Mr Burroughs about the consequences of pleading guilty was erroneous. Mr Cable was on his second strike and faced the prospect of life imprisonment without parole if convicted of murder. He was clearly aware of this. Mr Burroughs’ evidence was that he conveyed to Mr Cable the trial Judge’s acceptance that it would be manifestly unjust to impose life imprisonment without parole. While Mr Cable disputes he was told about the manifestly unjust exception, we do not think anything turns on that because Mr Burroughs had obtained an indication from the Judge that this was his view. This was clearly to Mr Cable’s benefit.
Mr Nabney’s argument, that Mr Cable had not gained anything because there was no reason the Court would not have adopted a similar course had he been convicted at trial, overlooks the sequence of events that prompted Mr Burroughs enquiries and led to the position Mr Cable found himself in after having decided that he did not wish the trial to proceed. Furthermore, there could be no guarantee that he would not be sentenced to life imprisonment without parole if he proceeded to trial.
The Court could not be held to any indicated sentence that had not otherwise been formally accepted or acted upon. The sentencing Judge may not have taken any different approach following a conviction but, as noted by Mr Burroughs in his evidence, a range of possible sentencing options would have been available to the trial Court based on its assessment of the evidence and other information about Mr Cable’s background. In those circumstances, there was no guarantee that a more severe starting minimum term of imprisonment, markedly greater than 13 or 14 years, would not have been imposed, even if life without parole was improbable. Mr Cable achieved the certainty that he would avoid the statutorily assumed outcome of a second strike offence following a conviction for murder, and secured some level of further certainty about the non-parole period he would face if he pleaded guilty.
We therefore do not consider that Mr Burroughs’ advice was either erroneous or resulted in Mr Cable being misled as to his position.
Alleged unreasonable pressure
We do not consider Mr Cable was subject to undue pressure to plead guilty or that he was rushed into making an ill-considered decision. To the contrary, we consider Mr Burroughs, when faced with his client’s reluctance to go to trial, took appropriate steps to do the best he could for Mr Cable, first, by re-engaging with the Crown in an effort to obtain an acceptance of a reduced charge and, second, by again consulting with the Crown and engaging with the Court in an endeavour to obtain some certainty about sentencing outcomes should Mr Cable plead guilty to murder. All these steps allowed Mr Cable to be better informed about the decision he was making to plead guilty.
We do not underestimate the pressure Mr Cable was under at the time. He was clearly concerned about his children having to give evidence, and the need to challenge his son’s testimony about witnessing his fatal attack on his mother. However, we do not consider the circumstances as they unfolded give rise to a concern that Mr Cable made a hasty or ill-considered decision to plead guilty. It appears he had been reflecting on the matter for some time prior to trial and we are in no doubt that he initiated the discussion with his counsel. Mr Burroughs met with him three times over the course of the morning before confirming his instructions, and did not allow Mr Cable to commit to a particular course of action until he had completed his enquiries and taken the time to discuss the evidence with him.
The sentence indication Mr Burroughs obtained allowed Mr Cable to be informed about the consequences of his decision. Far from being a rushed process, the steps Mr Burroughs insisted be taken before making any final decision slowed the decision-making down and allowed time for pause. We have no doubt Mr Cable decided not to proceed to trial at his own volition. His decision to plead guilty followed a series of iterative discussions with his counsel, during which he was given no erroneous or misleading advice.
Alleged inadequate advice regarding how the children could give their evidence
We consider there is no proper foundation for the concern raised regarding the absence of discussion about the mode of evidence by which the children would be able to give evidence at the time Mr Cable raised his concerns. As submitted by Ms Hamill, Mr Cable makes no reference to this complaint in his affidavit. It follows that it is not addressed by Mr Burroughs in his evidence. Mr Cable confirmed under cross‑examination that he did not want to put his children through a trial, but neither in his affidavit, nor in his oral evidence, did he address his understanding of how they would be giving their evidence should the trial proceed. We accept that, in the absence of evidence addressing the point, we cannot speculate as to whether there was any discussion on the morning of the trial about arrangements to reduce the stress on the children. Moreover, there is no evidence of Mr Cable’s knowledge or understanding of how those witnesses were to give their evidence.
In the event that their evidence was necessary, arrangements had been made for both children to give evidence by way of their pre-recorded evidential video interviews. Any cross-examination was to be conducted by way of closed-circuit television. This had been indicated as early as the trial call-over hearing in early September the previous year. Formal notice had also been provided by the Crown notifying the defence that both child witnesses would give their evidence in this alternative manner. While a complaint is made on the appeal that there does not appear to have been any discussion between Mr Burroughs and Mr Cable of the ways in which the children could have given their evidence to mitigate the effects on them, it is plain that such arrangements had been made.
There is no evidence to suggest Mr Cable was not aware of how the children were to give their evidence at the time he raised his concerns about the children having to testify. In any event, we do not consider the point is particularly material given the nub of Mr Cable’s appeal which centres on a claim he was misled as to the sentence he would receive by pleading guilty, rather than his counsel’s response to the concerns he accepts he raised regarding his children giving evidence.
Conclusion
We do not consider the circumstances in which Mr Cable pleaded guilty give rise to any concern that this is one of those exceptional cases where there has been a miscarriage of justice. Those findings are sufficient to dispose of the appeal, and it is not strictly necessary to address whether Mr Cable lost any genuine prospect of acquittal as a result of having pleaded guilty. However, for completeness, we observe that the newly proposed defence now put forward by Mr Cable, which represents a further version of how he fatally injured Ms Reid, only tends to confirm our view that no miscarriage was occasioned as a result of Mr Cable’s guilty plea.
The new proposed defence
The account now proffered is that in the course of an argument about Mr Cable’s lost gang patch, during which he had slapped Ms Reid with an open palm, Ms Reid had yelled at him as he searched a vehicle for the patch. Mr Cable claims that, without looking, he had kicked as hard as he could “backwards” at her. He was not looking where the kick would connect but felt it hit her. He carried on looking for the patch and, when he did not hear her talking, looked around to find her sitting on her heels, holding her head. She fell backwards but did not initially appear unconscious because her eyes were open. However, she was unresponsive so he carried her over to a balcony and then placed her on a mattress which he placed in the Portacom before going to his brother’s place to ring an ambulance. He admits making up a story when interviewed by the police, but denies getting his brother and his partner to lie for him.
Despite this account being materially different to the narrative he instructed Mr Burroughs about and that he provided to the psychologist shortly before his trial, Mr Cable maintains this is the defence that he wanted to go to trial on. It is not strictly necessary for us to express a definitive view of the merits of Mr Cable’s proposed defence. However, we are bound to observe that, while the fact Mr Cable has now given a number of different accounts about his involvement in Ms Reid’s death does not prevent him from advancing his latest version, it must be viewed with such scepticism as being barely capable of providing a tenable defence.[12]
[12]See Foley v R [2016] NZCA 607, where an exculpatory narrative proposed by an appellant after pleading guilty to murder was viewed as not capable of causing a jury to entertain a reasonable doubt as to his guilt.
Mr Cable’s account does not explain the number of fresh head injuries sustained by Ms Reid that are consistent with multiple blows having been struck. Mr Cable’s new narrative also remains in conflict with his son’s evidence, who witnessed Mr Cable dragging Ms Reid outside over the deck by her hair and administering multiple punches to the point she was rendered unconscious. As previously noted, the evidence of Mr Cable’s brother and his partner of him instructing them to lie to police about his whereabouts at the time, remains available to the Crown.
Furthermore, there is the propensity evidence of the sustained violence Mr Cable administered to Ms Reid, in particular to her head, on Boxing Day that was witnessed by a number of persons. When coupled with the repeated lies told by Mr Cable about his involvement in Ms Reid’s death, we doubt his latest account of a single backwards kick as having inadvertently caused her death is capable of viably raising a reasonable doubt as to his state of mind at the time he killed Ms Reid such that he could be found not guilty of her reckless murder.
Conclusion
It follows from our findings regarding Mr Burroughs’ interactions with him on the morning of his trial that we do not consider any concerns arise regarding the advice he was provided, nor that he was not able to make an informed decision to plead guilty to the murder of Ms Reid. We are satisfied the circumstances in which Mr Cable entered his plea did not give rise to any miscarriage of justice and that the further evidence, which differs from the account he provided to his trial counsel, does not, in the circumstances, raise a genuine prospect of acquittal.
Result
The appeal against conviction is dismissed.
Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington