Francis v The Queen
[2004] NZCA 137
•7 July 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA186/03
THE QUEEN
v
MALCOLM ALAN FRANCIS
Hearing:24 June 2004
Coram:McGrath J
Paterson J
Doogue JAppearances: N J Sainsbury and M W Snape for Appellant
K G Stone and C E Clarke for Crown
Judgment:7 July 2004
JUDGMENT OF THE COURT DELIVERED BY McGRATH J
[1] The appellant was convicted of the manslaughter of Ms Wathanak Tea by a jury in the High Court at Wellington on 20 March 2003. The sole count in the indictment charged him with the murder of Ms Tea between 26 December 2001 and 29 December 2001. That count was reduced to manslaughter by the trial Judge, Justice France, at the conclusion of the Crown case.
[2] The case against the appellant had been a circumstantial one. He had been the domestic partner of the deceased for a period during the second half of 2001. Their relationship had broken up during December of that year. The appellant had a long history of alcoholism and this was thought to be a factor, and possibly the principal factor, in the deceased ending their relationship. Shortly before Christmas the deceased, who had been living with the appellant at his house in Porirua, returned to live in her state rental house in Johnsonville, Wellington.
[3] The deceased had started to become friendly with another man and the appellant knew of this development. The other man went out with her on 26 December 2001. After that he endeavoured to contact her by telephone on several occasions but was unable to do so. The appellant admitted to seeing the deceased on 27 December 2001. There was no evidence of anyone else seeing her after that date. Nor was her EFTPOS account operated from that time. She did not return to her place of employment on 16 January 2002, as she had arranged.
[4] The appellant reported to the police that the deceased was missing on 19 January and was the first person to do so. He went with the police to her house. At that time he drew their attention to a bedroom which he told them was where she slept, but not to another, larger, bedroom which later became the focus of the police inquiry into Ms Tea’s disappearance. A full police forensic search of the premises followed.
[5] The larger bedroom of the deceased’s house had a double bed. A large number of small spots of blood were found on the head of the bed, on the walls behind, on one of the walls to the side of the bed, and on the wall opposite the foot of the bed near the doorway. An ESR scientist who gave evidence said that the blood staining consisted of small spots of blood and larger diluted looking blood stains.
[6] Samples of the various blood stains were collected for DNA testing. On the topside of the mattress on the double bed more traces of blood were found and several heavy bloodstains were found on the underside of the mattress, with traces of other clear fluid. It was apparent that the mattress had been turned over.
[7] All of the bloodstains in the room were in close proximity to the inside architrave of the door into the hallway, on which was found blood, with a palm imprint. The ESR had a sample of the blood of the deceased in its possession, as a result of circumstances unconnected to the alleged homicide, and a scientist who gave evidence was able to compare the blood found in the master bedroom with the sample of Ms Tea’s blood. As a result of analysis another ESR scientist gave evidence of the strong likelihood that the small spots of blood at the head of and alongside the bed, and on the underside of the mattress, all were blood of the deceased. So was the blood found on the architrave bearing a palm print. There was also evidence given that the palm print in that blood was that of the appellant.
[8] The obvious inference from the scientific evidence was that the deceased had been fatally injured, while she was on the double bed of the master bedroom with her head close to the bedhead. A pathologist gave evidence that the cause of the pattern of bloodstains on the bedhead was likely to be blows inflicted close to where the blood had originated. In giving that evidence he stressed that he was speaking from his experience and added that the study of blood splatter was something in which ESR scientists had more consistent experience than he did. He was, however, a very experienced forensic pathologist who had examined the scenes of many previous violent incidents. The stains on the underside of the mattress were said by him to be consistent with a head injury that had been caused by a heavy blow, giving rise to pulmonary oedema, a condition which rapidly could cause death.
[9] There was no obvious indication of a break-in to the deceased’s house. The appellant had possession of a key. A forensic examination of the Honda Civic hatchback car owned by the appellant located blood, identified as that of the deceased, on a panel inside the boot area. This was well away from any seating position in the car.
[10] A neighbour of the deceased gave evidence that she had observed a man leaving the deceased’s property one evening between Christmas and New Year carrying what appeared to be a heavy bag. Bags of a similar kind to those described were found in the possession of the appellant. Another witness who lived across the road from the appellant described an occasion, shortly after Christmas 2001, between 5am and 5.30am. The witness was up tending her child and happened to look outside. She observed the appellant at the boot of his car in the driveway across the road. She watched him for about 10 minutes. He appeared to be doing something in the boot area of the car but she could not see precisely what. The door on the driver’s side of the car was also open.
Grounds of appeal
[11] The principal ground of appeal against conviction was that trial counsel for the appellant made a radical error, either in not calling the appellant to give evidence at the trial or, at least, in not warning the appellant that if he failed to give evidence there would inevitably be adverse consequences through his failure to explain particular aspects of the case against him. In his careful argument for the appellant Mr Sainsbury submitted that the palm print of the appellant in her blood on the architrave in the bedroom was the crucial piece of forensic evidence connecting him with her death. If the presence of the palm print was explained to the jury in a way that did not implicate the appellant in her death, the Crown’s case, according to Mr Sainsbury, would become very weak. He said that there was no obvious motive and certainly no admission of guilt. While the appellant and the deceased had been in a relationship which had broken up, he had alerted the police to her disappearance and there had been no indication of any continuous disharmony between them. Mr Sainsbury acknowledged the single sample of blood of the deceased found in the rear luggage area of the hatchback, and the evidence of the neighbour of the deceased and the neighbour of the appellant but submitted that it was the appellant’s palm print in the blood of the deceased that was the glue which held the Crown case together. One of the ESR scientists had acknowledged that the blood stains could not be dated. Mr Sainsbury pointed out that the fact that the appellant’s palm print was in the architrave in the room in which it appeared that Ms Tea had met a violent death did not mean it was put there at the time of her death.
[12] The appellant had given his counsel an exculpatory explanation concerning the palm print prior to the trial. In an affidavit filed in this Court in support of his appeal the appellant said that he had told his lawyers that during the course of their relationship he had spent a lot of time at the deceased’s home helping her. He could not specifically recall an occasion when he left a bloody palm print on the architrave in her room. He did however tell his counsel that, some months prior to December 2001, he had been working on laying carpet in her bedroom when the deceased, who had been in the kitchen, cut her hand and came into the room holding her hand, which was bleeding badly and dropping blood on the new carpet. The appellant had helped her by wrapping her hand in a handkerchief. He said that this incident took place at the doorway to the master bedroom where the palm print had been found.
[13] The appellant did not give evidence at the trial and this explanation accordingly was not put before the jury. As to the circumstances in which the decision that he should not give evidence was reached the appellant said in his affidavit:
Following the Judge throwing out the murder charge my lawyers spoke to me about what should happen from there. I made it clear to them that I would not plead guilty to the manslaughter charge because I had not killed Wathanak.
As I remember it the issue came up again at this time about whether I wanted to give evidence. The advice of my lawyers was the same as it had always been, namely that I should not give evidence. I followed that advice. When talking with my lawyers about whether I should give evidence the need to explain about how the palm print might have got on the architrave was not raised nor was there any discussion about whether I could or should give my explanation for any parts of the Crown case, eg such as my exact whereabouts over this time or what I was doing with my car at any time. Had I been advised by my lawyers that it was necessary for me to explain about the palm print or any other matters I would have been prepared to give evidence.
[14] The appellant waived legal privilege and his senior counsel filed an affidavit in reply. In it he acknowledged that the appellant had provided him with instructions concerning how the bloody palm print came to be found on the architrave. Counsel was concerned that the palm print was clearly visible, and indicated the presence of a significant amount of the deceased’s blood on the appellant’s hand at the time that it was put on the architrave by him. Counsel was also concerned that the most attractive inference for a jury would be that the palm print was left by a killer who had attempted afterwards to clean up but had done so rather inadequately. The appellant’s instructions to counsel were that he had no recollection of actually causing the hand print and that the explanation he gave of the possible occasion for it was either when he was laying the carpet or on another occasion when she had cut herself gardening. On both occasions the appellant had helped dress the injury. The deceased had been known to be a meticulously tidy and clean housekeeper making it unlikely she would leave a significant and obvious mark as the bloodstain in her otherwise well kept home.
[15] Counsel agreed that both he and his junior took fresh instructions from the appellant, following his discharge on the count of murder, as to the remaining course of the trial. They raised with him whether he might wish to plead guilty in the face of what they saw as a strong Crown case, thereby giving himself an entitlement to some credit on sentencing. They also discussed whether the appellant wished to give evidence on his own behalf. As to the advice he gave at this stage senior counsel in his affidavit said:
9.I wish to make it quite clear that at all times prior to and during the trial when the question of whether the accused should given evidence or not was raised, my advice was always the same. At the conclusion of the Crown case, Mr Francis would have to decide whether by his giving evidence he could make the case better for himself. He was advised that a decision not to give evidence would not give rise to an automatic ground of appeal in the event he was convicted. Also that he should consider too, that if convicted a decision not to give evidence might be regretted. It was always made clear to Mr Francis that this decision was a very serious and important one and that it was for him to make the ultimate decision.
10.I disagree that prior to trial I told Mr Francis that he should not give evidence. In my 25 years experience of practice at the Criminal Bar I have never given such advice to anybody. The decision is always ultimately made at the end of the Crown case by the accused him/herself.
11.I had discussed with Mr Francis on many occasions the evidence he proposed to give if he elected to do so. I made it quite clear to him that in my opinion his account relating to the palm print would be considered inherently unbelievable and that such an assertion may seriously damage his case, such as it was. I would have clearly advised him that, in my view, he would probably be better off not giving evidence and that I was comfortable if he chose not to.
12.I always made it clear to Mr Francis that there were a considerable number of items of circumstance that could be the subject of any cross examination by the Crown prosecutor of him. I told him that such cross examination would likely be very lengthy and concentrate on issues such as the separation between him and the deceased, the late reporting to the police of her disappearance, the scene examination evidence and many numerous items of potential questions relating to the nature of the “cleanup”, his movements, his various declarations concerning the deceased, the cleaning of his car, and the single telephone call made to his home phone by the Deceased’s cell phone following her disappearance, and last but not least his account relating to the palm print.
[16] As well, counsel indicated that he was concerned at aspects of the personality of the appellant, and what he thought was a likelihood that cross-examination by the Crown might promote an outburst of anger which would be destructive of his defence.
[17] Incompetence of trial counsel is only made out if there is some aspect of the conduct of the defence that amounts to a radical error sufficient to show there has been a miscarriage of justice. Incidents during the course of the conduct of a trial by counsel that amount to mere miscalculations or a failure to present the defence in the best possible light are insufficient to meet the threshold. In R v Pointon [1985] 1 NZLR 109, 114 Cooke P said:
But it is established that rare cases do arise in which it becomes necessary to hold that in the conduct of the defence there have been mistakes so radical that the ground (miscarriage of justice) specified in s385(1)(c) of the Crimes Act 1961 is made out: see R v Horsfall [1981] 1 NZLR 116, 123. Such cases do not turn on whether or not there has been negligence. That is not the issue. Miscalculations can occur for which counsel, perhaps making tactical decisions under pressure, is not necessarily to be criticised. Nevertheless they can force an appellate Court to treat the trial as unsatisfactory.
Later, at p114 Cooke P emphasised that:
A mere mistake in tactics in the conduct of the defence does not of course afford a ground for a new trial.
[18] In R v Coster CA538/95, 19 March 1996 Eichelbaum CJ emphasised that, although from the perspective of an appeal it might be difficult to see what trial counsel had to lose by not taking a particular action during the trial, an appeal hearing could not recapture all of the dynamics of a trial. By way of summary of the threshold requirement he said:
Once again we are obliged to point out that in order to invoke the principle in R v Pointon…more is required than a rehearsal of events during the trial where other tactics might have yielded better results. The appellant must demonstrate mistakes so radical of fundamental to justify describing the result as a miscarriage of justice.
[19] In his argument Mr Sainsbury emphasised that the appellant had throughout denied having any involvement in the death of the deceased. Once the application was successfully made on the appellant’s behalf to have the count of murder struck out and substituted by one of manslaughter, an answer was required from the defence as to the presence of the bloody handprint. Otherwise conviction on that charge was inevitable. The appellant had such an explanation, but Mr Sainsbury submitted he had not had the opportunity to put it to the jury. Nor had he been warned on the consequences of not giving that evidence himself. In his affidavit Mr Francis acknowledged that the issue of whether he should give evidence had come up, and was discussed by him with his counsel following the reduction of the charge. He said that, had he been advised that it was necessary for him to explain about the palm print or any other matters, he would have been prepared to give evidence. As he recollects the position there was no discussion by counsel with him about whether the need to explain about the palm print was of such significance, that he should give evidence.
[20] This version is not contradicted in any significant way by what senior trial counsel says in his affidavit. He recalls that he indicated to the appellant that he was comfortable if the appellant chose not to give evidence. From this we infer that counsel was of the opinion that, if it were left to him to deal with the bloody hand print, he would be able to address the jury on that point, which course would avoid the risks of the appellant facing cross-examination on a number of other aspects of the circumstantial case against him if he did give evidence.
[21] Those risks included the manner in which the appellant would in the course of cross-examination defend his explanation of the handprint, and of other aspects of the evidence which pointed to him having killed Ms Tea. Counsel thought that the other matters he would be tested on would include how blood from the deceased came to be on a panel inside the rear luggage area of his hatchback, what he was doing when leaning into the area concerned for a period of some minutes between 5am and 5.30am, within a day or two of the presumed date of death of the deceased. He would be cross-examined as to his knowledge that another man had been taking the appellant out and asked whether he suspected that a romantic relationship might develop between that man and the deceased with whom he had recently been separated. Contentions by the Crown that the appellant had lied to the police in several respects would be raised along with the suspicion that he may have planted the deceased’s wallet in a street near to which, he had indicated to the police, some friends of the deceased lived.
[22] We accept the evidence of the appellant’s former counsel. In particular we accept that he made plain to his client there were serious risks in exposing him to cross-examination. It is the duty of defence counsel to give such advice where appropriate (R v Le CA208/00, 14 September 2000). We are satisfied that the risks were such that a competent counsel, who had had the chance to assess the appellant’s personality and consider how he would respond to questioning, might reasonably decide not to press on the accused the desirability of his giving evidence. We also accept that counsel, having informed him of the implications as he saw them, left the decision to the appellant. He was firm in his instructions that he did not wish to accept that he had killed the deceased. Whether his handprint, and the other aspects of evidence mentioned which pointed to him having done so, were to be explained by his giving evidence or through his counsel’s address was in our view a difficult question of judgment for the defence. We accordingly do not accept Mr Sainsbury’s submission that in the circumstances there was only one approach that a competent counsel could advise the appellant to take. The very obvious difficulties with the appellant’s explanation for the handprint meant that possible reasons for its presence might be explained more effectively by his counsel who would no doubt place emphasis on the inability of the ESR scientists to date the blood concerned. The same applies to the presence of blood in the luggage compartment of the car. There were also, equally obviously, high risks of failure in that course. But there were no other choices, given the appellant’s firm and no doubt well considered instructions that he would not accept responsibility for the death of Ms Tea even after the charge against him had been reduced to manslaughter.
[23] Accordingly we are satisfied that the circumstances come nowhere near demonstrating that the advice given by counsel which the appellant accepted was of a kind that amounts to a radical error such as might lead to a miscarriage of justice.
[24] Mr Sainsbury advanced additional grounds of appeal in relation to what he described as the paucity of the Crown evidence. We need deal with only two of them. He submitted that trial counsel had failed to object to certain evidence, of a prejudicial kind, in support of a general proposition that trial counsel had been focussed exclusively on the question of proof of intent of the accused, rather than on rebutting the case that he had caused the death in the first place. The matters raised included what was said to be prejudicial labelling of DNA samples, found on items of clothing at the appellant’s residence, that had been tested for suspected bloodstains. Here the concern was the suggested link with the appellant, in a table put before the jury because of the designation “male A”, which could have covered other unknown males.
[25] There was also the evidence of the pathologist who had been allowed to give an opinion concerning blood splatter in the bedroom. It was, however, clear that the pathologist adequately qualified himself to give that evidence and had emphasised the limits of his expertise in comparison with that of ESR scientists. None of these additional matters relied on, in our view, was of any significance in relation to the verdict of the jury and there is no need to discuss them further.
[26] We conclude that this is not one of the rare cases of radical error by trial counsel. Indeed we are satisfied that he was skilfully defended by them. There is no basis for the appellant’s contention that the jury’s verdict convicting him of manslaughter arose from a miscarriage of justice.
[27] The appeal against conviction is accordingly dismissed.
Solicitors:
Luke Cunningham & Clere, Wellington, for Crown
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