G v The Queen
[2021] NZHC 695
•22 April 2021
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2020-483-11
[2021] NZHC 695
BETWEEN G
Appellant
AND
THE QUEEN
Respondent
Hearing: 24 March 2021 Counsel:
N Bourke for the Appellant P D Marshall for Respondent
Judgment:
22 April 2021
JUDGMENT OF GRICE J
[1] The appellant was convicted of sexual violation and burglary following a Judge alone trial on 12 June 2020.1 He was sentenced on 7 August 2020 to 14 years’ imprisonment with a seven-year minimum period of imprisonment.2
[2] This is an appeal against the conviction.3 The grounds are: lack of a free and informed choice as to the mode of trial; that trial counsel failed to cross-examine on important aspects of the defence case; and that the appellant’s defence case was not properly put before the Court.
1 R v G [2020] NZDC 10945 [“Trial Decision”]; and Crimes Act 1961, ss 128(1)(a) and (b), 128B and s 231(1)(a).
2 R v G [2020] NZDC 15722 [“Sentencing Decision”].
3 The sentence appeal is not pursued by the appellant: G v R HC Wellington CRI-2020-483-000011, 11 February 2021.
G v R [2021] NZHC 695 [22 April 2021]
Background
Factual background
[3] The appellant is the paternal uncle of the complainant, B. B’s father is the appellant’s brother.
[4] B’s parents supported the appellant, offering him employment, financial assistance and helping care for his partner’s children. The relationship significantly deteriorated over 2015 and 2016. The Department of Child, Youth and Family Services (CYFS) were involved in relation to the appellant’s children. B’s father said he would not lie to CYFS about whether he had seen the appellant and his partner on drugs. The appellant became aggressive and threatening, and a few weeks later there was an altercation between the brothers. In January 2016, the appellant was trespassed from B’s family address.
[5] In July 2016, the appellant burgled B’s house. When apprehended, he explained he was “getting back at [his] brother”. He was held on remand and later sentenced between 29 October 2016 and 24 April 2017.
[6] The Crown case is that in 2017, the appellant entered B’s home on two occasions to find her home alone during the school holidays. B identified the appellant and described him violently raping her.
[7] On the first occasion, in April 2017, she recalled coming across him in the hall. The appellant grabbed B, ripped off her shorts and underwear, pushed her against the wall and raped her. He told B that she was “useless” and “this is revenge”. After ejaculating in her, he pushed on the floor, put on his clothes and left. She was bleeding from her vagina, she tried to clean up and went to bed for the rest of the day. She did not tell her parents what had happened, saying she hoped she could forget about the incident. She did tell her boyfriend at the time, J, and told him to keep it in confidence.
[8] On the second occasion a few months later, the appellant entered the house from the back door. When B saw him, she started screaming and tried to run. The appellant caught her in the lounge, bent her over the couch, pulled her shorts and
underwear down and sexually violated her, both vaginally and anally. After ejaculating in B, he left the house. J, again, was the only person B told.
[9] In September 2017, B attempted suicide. While in hospital, J told B’s parents that she had been raped by her uncle. When B woke up, she confirmed this had happened. Police were alerted on an informal basis.
[10]She undertook an evidential video interview. The appellant was charged.
Procedural history
[11] The appellant first applied for bail on 21 November 2018, when facing unrelated charges of burglary and resisting arrest.4 This was declined on the basis and that the bail conditions would not prevent interference with potential witnesses.
[12] In January 2019, the appellant was charged and remanded in custody on the current offending. He elected trial by jury. The trial was due to commence on 25 May 2020 but was postponed due to the COVID-19 restrictions. He chose to proceed by way of a Judge alone trial. He remained in custody until the trial.
[13] A Judge alone trial was held between 25 and 29 May 2020. On 12 June 2020, the District Court Judge delivered a decision and reasons.5 He found the appellant guilty of the charges. His Honour found B to be “a truthful, credible and reliable witness”.6 The Judge found that the complainant was offended against on both occasions and that his Honour was satisfied that the offender was the appellant. His Honour rejected the appellant’s account and was satisfied that he was “seemingly motivated to get back at his brother for the loss of his own daughter”.7
[14] On 7 August 2020, the appellant was sentenced to 14 years’ imprisonment and a minimum imprisonment period of seven years. The appellant was also placed on the child offenders’ register. The Judge set a starting point of 14 years’ imprisonment to
4 For those charges, a sentence of imprisonment was imposed, which was considered served when taking into account the time spent on remand.
5 Trial Decision, above n 1.
6 At [138]–[139].
7 At [141]–[142].
reflect the appellant’s overall culpability. His Honour considered there should be no uplift and that no personal mitigating factors were present.
Grounds of appeal
[15]The appellant relies on three grounds of appeal:
(a)There was an absence of a free and informed choice as to the mode of trial such as to give rise to a miscarriage of justice, based on inadequate advice from trial counsel.
(b)A miscarriage of justice has resulted because trial counsel failed to advance the defence case in accordance with the appellant’s instructions.
(c)A miscarriage of justice has occurred as a result of the appellant’s trial counsel (Mr Waugh) failing to cross-examine on important aspects of the defence case contrary to his instructions and the evidence.
Ground I: Trial Election
Background
[16] The appellant says that he elected trial by jury at his second appearance on 29 January. In his affidavit, he says he was strongly of the view that a trial by jury is better than a Judge alone trial. Mr Waugh, trial counsel, said in his affidavit that during the 18 months while awaiting trial, the appellant was adamant he wanted to be tried by jury.
[17] The trial was due to commence on 25 May 2020. On 25 March 2020, New Zealand entered COVID Alert Level 4 and all jury trials were suspended. Shortly before the appellant’s trial was to begin, Mr Waugh contacted the appellant to tell him that his trial would be adjourned he and could not confirm when would be the next available jury trial, but that it could mean another year remanded in custody.
[18] The appellant says he was left the impression, by Mr Waugh, that electing a Judge alone trial was a good idea. Based on the appellant’s recollection, he recalls Mr Waugh saying to him that the presiding Judge was “a really good Judge” who would be “clinical and rational whereas a jury could be emotional”.
[19] Mr Waugh also sent a letter of advice, which noted that a Judge alone “is potentially just as well placed, if not better placed, given his experience assessing whether witnesses are lying to assess credibility”. The letter also states the Judge was “a particularly fair judge”. Importantly, the letter also notes that the decision to change the mode of trial “is entirely up to you” and, later, “[u]ltimately, it is your choice whether to change your election to Judge alone trial”. The letter refers to the previous phone discussions and an earlier discussion that had apparently taken place by AVL. The appellant signed the letter stating he wished to proceed with a Judge alone trial.
Law
[20] The right to elect a jury trial is one of the most fundamental rights in our criminal system.8 The New Zealand Bill of Rights Act 1990 (NZBORA) enshrines the right to a jury trial, providing that:9
24 Rights of persons charged
Everyone who is charged with an offence –
…
(e)shall have the right, … to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment of 2 years or more;
…
[21] This right is also enshrined in the Criminal Procedure Act 2011 for persons charged with a category 3 offence.10
8 Stoves v Police HC Christchurch CRI-2003-409-067, 28 October 2003 at [19].
9 New Zealand Bill of Rights Act 1990, s 24(e).
10 Criminal Procedure Act 2011, s 50.
[22] In S (SC36/2018) v R,11 the Supreme Court described the jury as the conscience of the community. In Kumar v Police, as cited by the appellants, Brewer J held that “[a] failure to be given an opportunity to exercise the right has “almost always been met by the Courts with a finding of a miscarriage of justice”.12
[23] The Supreme Court has also said that it is important that defendants made an informed choice in relation to the making of election. It noted that there are two elements to that choice.13 First, knowledge, that is the defendant must know that he or she has a choice as to the mode of trial. The second element is the right of the defendant to take advice about the reasons for choosing one mode over another.
Appellant’s submission
[24] The appellant submits he did not make a free and informed choice to elect a judge-alone trial, due to a combination of the COVID-19 lockdown affecting jury trials and the inadequate advice received from Mr Waugh. It was uncontested that he had initially adamantly wished to be tried by a jury. However, he was keen not to continue on remand in custody pending trial so he followed the advice of Mr Waugh to change his election and have the matter heard by a Judge alone.
[25] The appellant says that Mr Waugh did not discuss the bail options with him. Mr Waugh accepted that. The appellant also says Mr Waugh, failed to advise on the relevant advantages and disadvantages of the respective modes of trial, giving no advice on any potential negative aspects of a Judge alone trial.
[26] The appellant submits it is not simply the right to elect a jury trial but the right of the defendant to understand the available options and to then make an informed choice that is at issue.
[27] The appellant points to R v N,14 where counsel had expressed the view that a Judge alone trial would be preferable but did not advise on the advantages and
11 S (SC 36/2018) v R [2018] NZSC 124, [2019] 1 NZLR 408 at [76]; citing B (SC 12/2013) v R
[2013] NZSC 151, [2014] 1 NZLR 261 at [99]
12 Kumar v Police [2018] NZHC 3202 at [46].
13 S (SC 36/2018) v R, above n 11, at [49].
14 R v N [2019] NZHC 2163.
disadvantages of each mode of trial. Dobson J held that the defendant was not adequately advised.15 His Honour said:16
To proceed in the face of unchallenged evidence that the defendant was not adequately informed of the advantages and disadvantages of the different possible modes of trial would be to require the trial to proceed in circumstances giving rise to a material risk of a miscarriage of justice. It is one that can be avoided.
[28] The appellant also cites the case of Niuia-Tofa v Police,17 for the proposition that issues of whether a charged act occurred or assessing the credibility or reliability of witnesses is the domain of a jury, and cited the following:18
[31] This was a case where the credibility and reliability of the primary Crown witness – the victim – were directly in issue. Such issues are quintessentially jury issues, and juries have a position of considerable importance in our criminal law system. The right to a jury trial is enshrined in the New Zealand Bill of Rights Act. Mr Niuia-Tofa was not aware of his entitlement to a jury trial. He was not advised of his right to such a trial. He did not elect to have a Judge-alone trial, and such a trial was foisted upon him without his informed election. That was unfair, albeit unintentional. While there is nothing to suggest that the trial itself was conducted unfairly, Judges are sworn to uphold the law. Juries on the hand, represent the conscience of the community. In my judgment, there was an error or irregularity affecting the trial, which has resulted in an unfair trial. There was a miscarriage of justice, and the appeal is allowed.
Respondent’s submission
[29] Following the two-stage approach on informed choice, as set out in S (SC36/2018) v R, the Crown says both elements are satisfied. The appellant knew it was his choice to elect the mode of trial and, secondly, he received proper advice on the choice before making it. The Crown says the appellant is trying to review the quality of the advice, which the Supreme Court has said is “difficult to review”, as such advice is based on experience and impression.19 The Court went on to say that this could open up a “new area for challenge to the competency of counsel which it
15 R v N [2019] NZHC 2163 at [64].
16 At [60].
17 Niuia-Tofa v Police [2019] NZHC 1003.
18 At [31].
19 S (SC 36/2018) v R, above n 11, at [56].
would be difficult for the courts to supervise”.20 The minority in that decision emphasised similar concerns.21
[30] The Crown says that the appellant was aware and had the opportunity to take legal advice. There is little scope to relitigate the decision, post-conviction, of the advice provided, given the subjective, impressionistic and inherently uncertain nature of such advice. Mr Waugh’s advice was based on his own impression and experience as to the fairness of the particular Judge, and there was no error in this advice. Mr Waugh now saying his advice was in error is in “hindsight”.
Discussion
[31] At the outset the appellant had elected a jury trial. That is clear. It is also not disputed that he then withdrew his election and in writing confirmed he wished to go to trial before a Judge alone.
[32] Mr Waugh, in his affidavit, says in hindsight that a jury would have been better placed to assess the appellant’s case. However, he says that, from his conversation with the appellant, Mr Waugh believed that the appellant “was aware of the respective advantages and disadvantages of a jury v a Judge alone trial”.
[33] In terms of bail, Mr Waugh notes that the appellant had previously been declined bail simpliciter and EM bail by the District Court. Once he was granted bail on appeal to the High Court he had breached it and was further remanded in custody. Mr Waugh says he should have discussed it further with the appellant but he also notes he had sought bail on another matter based on delays due to COVID-19 unsuccessfully.
[34] The appellant did not want to remain on remand to await a jury trial on an uncertain date. In his words, it made him feel sick. Mr Waugh says he “did not see [the appellant] had any chance of being granted bail”.
20 S (SC 36/2018) v R, above n 11, at [84].
21 At [94].
[35] Due to the COVID-19 restrictions, no one knew how long the delay would be. In hindsight, Mr Waugh suggests it may have been better to wait for a jury trial. This does not mean the appellant was not properly advised at the time and Mr Waugh made that clear to the appellant. The issue is whether the appellant was properly informed.
[36] In this case, I am of the view that the challenge is to the quality of the advice received. The appellant knew he had a choice although no one knew how long the delay would be.
[37] The options were canvassed. Mr Waugh’s letter and the affidavits suggest that Mr Waugh may have suggested a Judge alone trial was the preferred option in the circumstances. Mr Bourke characterises that letter as a “sales pitch” for a Judge alone trial. Mr Waugh said he was not surprised at the appellant changing his election due to his motivation to get off remand.
[38] I do not consider the failure to expressly mention bail at the time of discussing election is an error. Apart from anything such an application would have been unlikely to succeed due to the appellant’s history. The underlying consideration is whether the appellant was properly informed of his right to continue with his election.
[39] Mr Waugh’s advice does not undermine the appellant’s informed choice to elect.
[40] His evidence is that the appellant was aware of the respective advantages and disadvantages of a jury trial against a Judge alone. He refers to discussions being “at length” in his letter to the appellant of 5 May 2020. He said in that letter:
11.As discussed, whether you are found guilty or not guilty will come down to [B]’s credibility particularly under cross examination by me. If a Judge or jury were “not sure” she was telling the truth then you should be acquitted.
12.As discussed, a Judge alone is potentially just as well placed as a jury, or better placed, given his experience assessing whether witnesses are lying to assess credibility. The judge who would hear your Judge Alone Trial (Crayton) is a particularly fair judge. We also discussed that there was perhaps some risk with a jury that they would be influenced by [B] being “a little girl in tears” and may be unable to assess her evidence as coldly and clinically as a Judge.
13.We have discussed these matters at length, and as I understand it, you wish to have this matter resolved sooner rather than later and feel that there are benefits of either jury or judge alone trial. You maintain your innocence and feel that a Judge will see that [B] is lying.
[41] Mr Bourke says Mr Waugh gave the appellant no choice. He failed to advise him expressly of specific disadvantages of a Judge alone trial. For instance, failed to warn the appellant of the unconscious bias that a Judge may bring or of the advantages that a jury brings such as local community views. A jury may have better understood the improbability of someone not hearing the complainant’s cries when being raped during the day in the middle of Wanganui with the complainant’s cries.
[42] However, the complaint focuses on the quality of advice the appellant received. The Supreme Court in S (S36/2017) v R noted that while counsel should see it as part of their role to provide “some advice” of mode of trial, because that advice is based on “experience and impression” its adequacy would be “difficult to review”. The majority noted that there were “concerns … about opening up what would be a new area for challenge to the competency of counsel which it would be difficult for the courts to supervise”.22
[43]Ellen France J for the majority said:
[52] As to the desirability of advice, it seems to us that it would be preferable for the courts to include, as part of their procedures at the time a plea is taken where it is relevant, the advice that there is a choice as to the mode of trial. For example, any relevant forms should contain a prompt as to the need to check advice has been provided. Further, trial counsel should see it as part of their role to provide some advice on this aspect.
…
[55] In response to questions from the bench during the hearing, Ms Levy suggested by way of example that the advice on the election faced by the appellant might canvas matters such as the issues the jury would be faced with and the ways in which a jury’s approach to those issues might vary from a judge’s approach. To illustrate, it was suggested that attention could be given to the difficulties jurors might have in separating the fact that the appellant, as a man in his 30s, was engaging in sexual activity with a young girl from the other issues before the jury. Ms Levy also placed some emphasis on the impact of the ruling that the charges relating to the two complainants be heard together and as to the admissibility of evidence on a propensity basis.
22 S (SC 36/2018) v R, above n 11, at [84].
[56] As is apparent, however, these matters encompass areas on which it is difficult to review the reasons for making these types of distinctions.23 Accordingly, while the appellant was entitled to an informed choice it has to be recognised in considering the importance of the absence of that choice in this case that the advice that can be given about why one mode of trial may be preferred over another is based on experience and impression. A contrast can be made in this respect with other trial decisions, such as the election to give evidence, on which it is possible to be more concrete about the impact of not making the choice on an informed basis. (The latter decision was one identified as fundamental in the sense of the impact on a challenge to a conviction based on the failure of trial counsel to follow specific instructions in Hall.)24
[44] In this case, Mr Waugh has given proper advice on the options. While he may not have set out the advantages and disadvantages in his letter explicitly, that is not what is required. What is required is proper advice about why one mode of trial may be preferred over the other and in general terms the defendant should be informed of the options. It is clear that the letter followed lengthy discussions of the options.
[45] In this case it is also noteworthy that Mr Waugh’s advice reflected that which senior counsel advice in S (SC 36/2018) v R says she would have given had she been required to give the: that a Judge alone trial might be preferable “in extreme” sexual offending.25
[46]Ellen France J in S (SC 36/2018) v R said:
[53] But, in terms of our present inquiry, the point is that there is no reliable basis on which it can be said that one mode of trial for the present case is fairer than another. The provisions in the Criminal Procedure Act relating to the ability to withdraw an election suggest some assessment of the reasonableness of the defendant’s decision is possible. But in the present case, there will necessarily be a degree of speculation about whether a jury or a judge alone as the fact-finders may adopt differing approaches. We can say that the absence of any reliable basis for a conclusion on this point in this case is apparent on considering the advice Ms Hughes now says she would have given if she had been aware of the availability of the choice as to the mode of trial.
[54] Ms Hughes in her affidavit said that her usual advice in a case (such as the present) where the defence was consent was to recommend a jury trial. In particular, she described her usual advice as follows:
23 Compare Liu v R [2017] NZCA 573, [2018] 2 NZLR 697 (provision of advice as to person right to challenge juror without cause).
24 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26.
25 S (SC 36/2018) v R, above n 11, at [53].
4.1If the client’s defence was ‘technical’ or involved complex law, I would recommend a JAT [Judge-alone trial].
4.2If the allegations involved particularly upsetting or objectionable allegations – for example, sexual offending involving children,
animals or “extreme” sexual offending – I might recommend a JAT.
4.3If the trial is about consent, I would usually recommend a jury trial. Where the fact-finder comprises 12 people rather than a single Judge, their decision will be based on a larger pool of sexual experiences. In [the appellant’s] case he largely admitted the sexual conduct alleged; his defence was that both victims had consented.
[47] In my view Mr Waugh’s advice was adequate, it was based on impression and experience and he made no error. As Glazebrook and Arnold JJ (in the minority) put it in S (SC 36/2018) v R:26
An accused’s lawyer would often also give the accused his or her opinion on how the election should be exercised or on the factors to take into account in deciding whether or not to elect a jury trial. We agree with Ellen France J that any such advice given by counsel would be based on impression and experience. It would thus be very unlikely to be amenable to review.
[48] Mr Waugh was advised on his right to elect and of the implications and of his advice in the circumstances. Subsequently the advice was given in writing in summary form as well as the suggested strategy. The appellant after this advice chose to withdraw his election to trial by jury. He did this in writing.
[49]This ground of appeal fails.
Ground II: Advancing the Defence’s Case
[50] The issue under this ground is whether Mr Waugh failed to advance the appellant’s case, namely that he had not raped B, that B was not credible and was lying.
26 S (SC 36/2018) v R, above n 11, at [94].
Law
[51] In Hall v R,27 a full bench of the Court of Appeal held that there are “three fundamental decisions on which trial counsel’s failure to follow specific instructions will generally give rise to a miscarriage of justice”.28 They relate to plea, electing whether to give evidence and to advance a defence based on the accused person’s version of events. When an appeal is based on the failure to follow instructions, the Court in Hall noted that:29
… the focus will be on whether, as a matter of fact, there was a failure to do so. “Instructions” in this context mean a clear direction as to how the trial or an aspect of it is to be run. This Court in R v S drew a distinction between “an expression of the client’s views on a particular matter” and “directions to be observed and implemented by counsel”.
[52]The Court of Appeal gave an illustration of the differences:30
… In R v McLoughlin the Court concluded a miscarriage of justice had resulted from a failure to follow instructions to advance an alibi defence in a rape trial.31 Two alibi witnesses had been briefed and notice was given that they were to be called. Trial counsel began to advance the alibi defence in cross-examination but then decided not to pursue it. Instead, he sought to rely on the, incompatible, defence of consent.32 Not surprisingly, the Court said counsel had no right to disregard instructions. The Court in Pointon contrasted the type of conduct in issue in McLoughlin with “a mere mistake in tactics in the conduct of the defence”.33
[53] In one of the cases that the Court of Appeal was dealing with in Hall an appellant, Mr H, complained trial counsel had failed to advance the defence that the complainants were lying, and so did not conduct the defence according to Mr H’s instructions.34 The Court held that the only instruction was that the complainants’ allegations were untrue, and that the decisions on tactical issues at trial, such as the line of cross-examination, were left to trial counsel.35 Further, the Court noted Mr H had made no complaint to trial counsel during the lengthy cross-examination
27 Hall v R, above n 24.
28 At [65].
29 At [69] (footnotes omitted).
30 At [70] (footnotes omitted).
31 R v McLoughlin [1985] 1 NZLR 106 (CA).
32 At [107].
33 Referring to: R v Pointon [1985] 1 NZLR 109 (CA) at [114].
34 Hall v R, above n 24, at [155](b).
35 At [190].
Appellant’s submission
[54] The appellant submits that the present case does not concern trial style or tactics, but the fundamental issue of the nature of the defence. He notes that Grounds II and III are intertwined. Ground III relates to discrete matters on which Mr Waugh should have cross-examined in order to establish the foundation for submissions of credibility and Ground II is the failure to properly pursue credibility at all.
[55] The appellant submits that Mr Waugh abandoned his instructions, instead focussing his cross-examination around conflicting timings and school holidays to shake B’s version of events, at the expense of the appellant’s instructed defence of B’s lack of credibility and that the events did not happen. Mr Waugh said he had made his own assessment of B as an “honest, yet mistaken witness”, based on her demeanour. He had noted in his closing “the complainant’s demeanour was, perhaps, suggestive of some of her belief that she was telling the truth”.
[56] The appellant also criticises Mr Waugh for offering alternative defences in his closing, such as the rape having been in a dream or that B had other “uncles” and senior men from the family church whom she called “uncle”. Furthermore, the appellant says these alternative theories were not put to the complainant which the Judge had pointed out.36
[57] Mr Bourke submits that there had been opportunities to lay the foundation for B’s lack of credibility in cross-examination which were not pursued. He indicated that it was not a simple issue that Mr Waugh had not directly called B a “liar” but that he had failed to robustly pursue opportunities to show she was not credible.
Respondent’s submission
[58] The respondent says the instructions from the appellant were that he denied raping B or indulging in any form of sexual conduct. His defence was that she was not credible and was lying. In his affidavit, the appellant says that B “being a liar was
36 Trial Decision, above n 1, at [106].
to be at the forefront of [his] defence case”. The Crown says Mr Waugh’s response in his affidavit, namely that he accepted the appellant’s instruction that he did not rape the victim, which is based on B not telling the truth, but:
14.The specific tactics at trial were my decision and I made the decisions based on what I thought would be most likely to assist the decision- maker reaching the verdicts of not guilty.
[59] The Crown says that Mr Waugh forcefully advanced the defence case that B was neither credible nor reliable, and invited the Judge not to believe her evidence.
[60] The Crown points to the cross-examination, and says Mr Waugh focused on undermining B’s credibility. The Judge noted in his decision that Mr Waugh put to B “directly that her account of events was not true”.37 The Judge noted that during closing addresses, “the issue of the complainant having a motive to lie has been put before the Court”.38
[61] The Crown points out Mr Waugh’s closing was focused on the lack of credibility and unreliability of B, noting instances where he described B’s evidence as “inherently unbelievable”, “illogical, “internally inconsistent”, that it had been “created” at trial. Mr Waugh also suggested possible motives for B to lie.
[62] The Crown says Mr Waugh’s conduct of the case and cross-examination was at counsel’s discretion. This included his decision not to directly call B “a liar”, focussing instead on why her account should not be believed.
[63] The Crown also distinguishes this case from K (184/2019) v R,39 relied on by the appellant. That decision concerned the correctness of counsel’s legal advice, and the Court found there was material error in counsel’s reasoning. Furthermore, the proposed defence in K was to rely on his version of a wide range of events, rather than a blanket denial, as is the case here.
37 Trial Decision, above n 1, at [23].
38 At [23] and [33].
39 K (184/2019) v R.
[64] The appellant criticises Mr Waugh’s references in closing to B’s demeanour as appearing truthful. However the Crown notes Mr Waugh was trying to ensure the Judge focused on the alleged implausibility and inconsistency of her story. The Judge did put aside the complainant’s apparently truthful demeanour and concentrated on what B said. He assessed her credibility and reliability against all the evidence in the case.40
Discussion
[65] The appellant instructed Mr Waugh that he did not rape B, that the events did not happen and B was lying. Mr Waugh accepts this in his affidavit.
[66] Mr Waugh followed his instructions to focus on the complainant’s credibility. He did so in a manner that he considered had the best chance of success. This was in view of his belief that challenging B’s narrative “would have achieved little apart from allowing her the opportunity to reinforce her allegations”. Mr Waugh took a course of highlighting the implausibility and impossibility of her allegations. Mr Waugh says:
… such as her … evidence being of her being raped on a day when [the appellant] was in prison, which she confirmed. If I had gone on to put to her that she was lying, she would have denied it, and potentially explained how the significant trauma she had suffered meant her dates were all muddled up.
[67] It is the duty of counsel to put the case of the defendant to the complainant. Mr Waugh did this. Mr Waugh cross-examined the complainant extensively and largely on issues designed to undermine her credibility. This is apparent from the over 60 pages of transcript. He clearly put to her that her “account of events was not true”.
[68] Much of Mr Waugh’s closing address focused on inconsistencies. The appellant says that while the closing address may have put the issue of credibility front and centre opportunities were lost to establish the foundation in cross-examination. Nevertheless, the Judge himself had noted that B’s credibility and reliability were put to the test in cross-examination and her motives for lying were put before the Court.
40 Trial Decision, above n 1, at [21].
[69] I deal with the particular points which the appellant says were missed opportunities to lay the foundation under Ground III below.
[70] In summary however, in my view, Mr Waugh did not stray from the fundamental directions given by the appellant. He put forward a forceful defence and cross-examined B as required based on the premise that B was not telling the truth. It was a matter trial counsel’s discretion how to best pursue that. As Kós P put in Hunter v R:41
…
The remaining complaint was that trial counsel failed adequately to cross-examine complainants as to their assertions of ownership. That is not our appreciation of the evidence, … the complainants were robustly challenged and the jury was left in no doubt that the defence position was that the majority of tools belonged to the Hunter brothers and were claimed by the complainants either dishonestly or in error. In any event, cross-examination is an area where trial counsel must be given substantial latitude free of wise-after-the-event repentance and assessment.42
[71] My conclusion on the material is that the appellant’s true instruction in the sense of a direction on how the trial was to be run was that the rapes did not happen and the complainant’s allegations were not credible. Mr Waugh was left to decide on tactical issues at trial such as the line of cross-examination to be pursued to most effectively pursue that direction.
[72] The appellant made much of the fact that Mr Waugh now, with the benefit of hindsight, considers he may have been better taking another tack. However, that is not the issue here. Mr Waugh was entitled to adopt the specific tactics he did at trial. He pursued a defence based on lack of credibility of the complainant and that the events did not happen. Mr Waugh properly put forward the defence’s case.
[73] This ground of appeal goes directly to trial counsel’s style and tactics. There was no error or miscarriage of justice under this ground.
41 Hunter v R [2021] NZCA 75 per Kós P at [38]. This was a recent decision handed up at the appeal hearing by the Crown. Mr Bourke indicated there was not time to respond to it.
42 Loffley v R [2013] NZCA 579 at [53].
Ground III: other trial errors during cross-examination
[74] The third ground of appeal involves some discrete points concerning Mr Waugh’s cross-examination or failure to cross-examine. The criticisms relate to failure to directly confront B about issues relating to when she lost her virginity, her comments to a family friend about a boyfriend, B’s comments to her father about a third incident occurring, and a general failure to put various matters to B during cross-examination.
Law
[75] The Court of Appeal in W (CA272/2017) v R43 made the following comments about reviews based on cross-examination:
[15] Relevantly for present purposes, decisions regarding the style and ambit of cross-examination are not regarded as a fundamental decision where a failure to follow a client’s instructions will generally make the trial unfair. In S (CA361/2010) v R it was noted that the Court will ordinarily be slow to second-guess defence counsel who must make immediate important decisions about the extent of cross examination, noting that such decisions were often based simply on instinct and experience. There is a degree of latitude accorded to counsel as to how to conduct cross-examination. Thus, the decision as to how cross-examination should be approached is, quintessentially, the province of counsel who is best placed by dint of trial experience to determine the most effective approach in any given case.
(Footnotes omitted)
[76] The Crown also notes the importance of latitude here where cross-examination was of a young complainant in a sexual abuse case.
Sex with a boyfriend/s 44 application
[77] This relates to whether or not the complainant was telling the truth when she said that the appellant had taken her virginity. B’s boyfriend, J, made a statement saying that he had had sex with her prior to the alleged rape. J said that by sex he meant he put his penis into her vagina. The complainant said when this was put to her by the police, they had only tried to have sex and did not have actual sex.
43 W (CA272/2017) v R [2018] NZCA 11.
[78] In an application under s 44(1) and (3) of the Evidence Act 2006 (previous sexual history cross-examination), the Judge had indicated that the complainant’s description of herself as a virgin related to the fact she had not engaged in full penetrative sexual intercourse before her rape by the appellant. The Judge’s ruling was that he considered whether or not the complainant was a virgin at the time of the rape was not an issue.
[79] The appellant said that Mr Waugh should have cross-examined the complainant on this at trial. The appellant says that Mr Waugh did not pursue this issue fiercely enough. He should have been more persistent and made another s 44 application or appealed the Judge’s ruling.
[80] Mr Bourke says that at issue was not the previous sexual history of the complainant but her veracity. Cross-examination on this point could have set a foundation for submissions on her credibility.
[81] Mr Waugh did not pursue the issue in cross-examination of B at trial. In my view the call not to do this was clearly a matter for trial counsel. There were very limited prospects that this line of cross-examination would have been allowed. As the Crown noted, it would have involved intruding into intensely personal details of a young complainant’s sexual relationship with her teenage boyfriend. The Judge had already given a ruling and the complainant had already accepted that she previously attempted to have sex with J but it had not worked out.
[82] In my view this was a matter which was within trial counsel’s discretion. It was a matter that required the application of experience and skill. Mr Waugh was entitled to take the course he did. He made no mistake and cannot be criticised in hindsight.
Complainant’s comment to a friend about a new boyfriend
[83] This relates to the complainant’s comments to a friend some years after the rape that she had told a subsequent boyfriend that J (her boyfriend at the time of the rape) had pressured her into having sex. Again, it is unlikely that this line of cross-examination would have been permitted. In any event, the material was not
relevant to the facts in issue other than credibility in general. It is unlikely to have crossed the s 44 threshold, nor the s 37 veracity test. It would have resulted in a deviation in the trial on issues that were entirely peripheral.44
[84] This was an issue for trial counsel’s discretion in relation to cross-examination of the complainant.
The “third incident”
[85] This relates to B’s father recalling B telling him there had been another time that she was home alone and the defendant was in the house but she managed to hide.
[86] Mr Waugh did cross-examine the complainant about whether or not she remembered her father telling her this. She said she did not.
[87] The complaint is that Mr Waugh should have gone further in his cross-examination. Again this is clearly a matter of trial counsel’s discretion as to how far to push this matter in cross-examination. The failure to pursue it in the face of her responses is not an error.
The complainant’s comment regarding the sexual violation
[88] In her evidential video interview, the complainant said that during the second attack the appellant’s “penis went in my vagina and my butt”. She explained in her evidence-in-chief that she meant “he put his penis in my vagina as well as my anus”. She said: “it hurt a lot”.
[89]A friend of B’s recalled B telling her that “he tried to put it up my butt”.
[90] The appellant submits that the friend’s evidence was potentially an absolute defence to charge 5 (in so far as it related to penetration), therefore Mr Waugh should have cross-examined B on it.
44 Section 37 of the Evidence Act 2006 provides that a party may not offer evidence in a civil or criminal proceeding about a person’s veracity unless the evidence is substantially helpful in assessing that person’s veracity. It is unlikely that the “substantial helpfulness” test would have been met in relation to this issue.
[91] Again this was a matter of discretion for trial counsel. It is not surprising that Mr Waugh did not cross-examine on this given that the main defence was that it did not happen at all so the credibility of the complainant was being attacked as to whether she was lying about the events. A deviation into the issue of the extent of penetration could have substantially detracted from the primary defence. Mr Waugh made no error in not pursuing it. In any event, the issue would have likely resolved itself into an unhelpful exchange over the exact nature of the penetration.
Failure to cross-examine on the uncle/dream theories
[92] In his closing address, Mr Waugh raised the suggestion that B had other “uncles” and that her account of the first rape “would be more consistent for something that may happen in a dream”.
[93] In his reasons the Judge recorded that neither proposition had been put to B directly. The Judge expressly said that he did not draw any inference adverse to the defendant as a consequence of a failure to put those matters directly to the complainant.
[94] It appears that Mr Waugh did err in raising those possibilities without cross-examining B on them. However, those closing submissions did not affect the outcome of the trial. His Honour simply put them to one side.
[95] A similar complaint was made without success in Hall v R45 where the defence opened on a theory which could not be pursued after a Judge’s ruling during the trial.
[96] In this case the Judge specifically put the relevant matters to one side. The submissions did not harm the appellant’s defence.
[97]There was no material error. Accordingly, ground III also fails.
Result
[98]Therefore the grounds of appeal against conviction all fail.
45 Hall v R, above n 24, at [210]–[216].
[99]The appeal against conviction and sentence are dismissed.46
Grice J
[100] Addendum: there is no suppression order in force relating to Mr G. His name and identifying details and the nature of his offending can be published as long as this is done in a manner that does not breach the protections for the complainants in s 203 of the CPA.47
Solicitors:
Bourke Law, New Plymouth for the Appellant. Crown Law, Wellington for the Respondent.
46 Following the appellant’s information that the sentence appeal was abandoned.
47 This judgment was anonymised as the publication of the appellants name may lead to identification of the complainant in breach of s203 of the CPA: Minute of Grice J dated 22 April 2021.
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