Gabriel v Police
[2013] NZHC 1721
•12 July 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-404-460 [2013] NZHC 1721
BETWEEN BRIAN GABRIEL Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 8 July 2013
Appearances: D Hoskin for Appellant
W Fotherby for Respondent
Judgment: 12 July 2013
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 12 July 2013 at 2:00 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
BRIAN GABRIEL v NEW ZEALAND POLICE [2013] NZHC 1721 [12 July 2013]
Introduction
[1] Brian Gabriel was convicted by Judge Sinclair in the North Shore District Court on 12 March 2012 on one charge of male assaults female1 and was sentenced to 12 months’ intensive supervision. He has appealed, out of time, against the conviction. The delay in filing the notice of appeal was not the fault of the appellant; the respondent not objecting, leave to file out of time is granted accordingly.
[2] Mr Gabriel asks that his conviction be quashed on the grounds of a miscarriage of justice, submitting that he was not competently defended by counsel and that Judge Sinclair’s finding of guilt was against the weight of evidence.
Brief factual background and issues
[3] On 26 May 2011, the appellant and the complainant, who was then his partner, were at their home in Takapuna. They had each consumed alcohol. The complainant told Mr Gabriel that on the previous Saturday she had slept with another man who belonged to the appellant’s rugby team. An argument followed. The complainant alleged the appellant slapped her across the face in the course of it, causing minor injuries to the right side of her nose and bottom lip. Police officers who responded to the complainant’s call immediately following the alleged assault observed the injuries which were little more than small marks or abrasions. The appellant denied the allegation and claimed that it had been fabricated. He suggested other possible causes of the complainant’s injuries.
[4] Judge Sinclair rejected the appellant’s denials and accepted that the evidence
of the complainant proved the assault beyond reasonable doubt.
Grounds of appeal
[5] The appellant appeals his conviction on the grounds that:
1 Police v Gabriel DC North Shore CRI-2011-044-3606, 12 March 2012.
(a) the decision of the District Court was against the weight of evidence;
(b)there has been a miscarriage of justice in that his defence was prejudiced because –
(i)his trial counsel did not follow his instruction to produce evidence that supported his position that he never assaulted the complainant; and
(ii)trial counsel did not follow his instructions in putting his defence adequately to the complainant in cross-examination.
[6] The evidence which the appellant says was available and should have been produced at trial is a collection of voice messages that the complainant left on the appellant’s phone, collected on a CD. The appellant says that in one message the complainant allegedly said “I’m going to tell the police you beat me up”.
[7] I am required to decide:
(a) whether there was an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome so that a miscarriage of justice has occurred;2 and
(b)whether there was evidence upon which the Judge was entitled to find the charge proved beyond reasonable doubt.
Result
[8] For the reasons given below, I find:
(a) The criticisms of the conduct of trial counsel do not meet the high threshold of establishing that something must have gone wrong with the trial or in some other relevant way and that what went wrong must
have led to a real risk of an unsafe verdict.
2 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.
(b) There was ample evidence to justify the District Court Judge’s
decision that the charge was proved to the required standard. [9] There being no merit in either ground, I dismiss the appeal. Credibility issue between complainant and appellant central to decision
[10] The case in the District Court turned on whether the Judge accepted the evidence of the complaint as sufficiently credible, in the face of the appellant’s denial to the Police and at trial, to justify the conviction.
[11] The complainant’s evidence was that the argument occurred immediately after she admitted her infidelity, and that the appellant became angry, grabbed her tightly around the chin and jaw with one hand, and slapped her once across the face with the other hand.
[12] The appellant said in evidence that he took the admission calmly because he already held suspicions about it and had confronted the complainant about it throughout the week. He maintained that an argument began only after the complainant blamed him for her actions, because he had brought his rugby friends to their home. He said also she had got angry with him because he did not eat the meal she had cooked for him. His evidence was that he said to her, “Get your ass off of my face and go to bed”, and that at no time did he touch, grab or strike her.
[13] It was common ground that the complainant went upstairs and called the police. On arrival at the house, one of the officers took photographs of her face, which featured a mark on her nose and a mark on her lip. The complainant told the Police that the marks were a consequence of being slapped by the appellant. The appellant told the Police (and repeated in his evidence at trial) that the marks looked like carpet burns and were likely self-inflicted either by the complainant falling over or possibly by self-harming.
[14] The appellant was arrested at the house and subsequently left it with the
Police. One of the officers, Constable Goodhue, gave evidence at the trial that the
appellant was very intoxicated, to such an extent that he could not be formally interviewed at that time. Constable Goodhue also gave evidence that on the ride home the appellant made a number of spontaneous admissions:3
Shortly – not as soon as we left, we were sitting outside, but a very, very short time after we left the address, it would have been no more than 200 metres down the road, the defendant said to me that he – he said, “I’ve done lots of counselling. If I hadn’t, I would have killed her,” and then no more than another 200 metres down the road, he said to me, “Imagine what more I would have done if I hadn’t had counselling.” During the trip back to the North Shore Policing Centre I asked the defendant, “What do you mean by imagine what more you would have done?” The defendant answered me, “Imagine it yourself.” I then asked the defendant, “How much have you had to drink?” and he answered me, “I like my whisky; half a bottle of single malt whisky.” I then asked the defendant, “Did you hit your partner tonight?” and he answered, “Nope, I didn’t lay a hand on her.” I then asked the defendant, “How did she get the injuries on her face?” and he answered, “Not from me, I went to counselling, otherwise she would be dead.” I then asked the defendant, “How did your partner sustain injuries on her nose and her lip?” and he answered me, “Self-harmed, bitch; I don’t want to say any more.”
[15] In giving reasons for her decision, Judge Sinclair favoured the complainant's evidence and her credibility over that of the appellant. The Judge said:
[10] It has been necessary for me to consider the honesty, reliability and credibility of each witness. This is a situation where the decision has to be based on what you said and what the complainant said. I have considered the reasonableness, coherence and probability of the evidence of each witness and I have considered the appearance, demeanour, sincerity and manner of each witness, although I do place little weight on demeanour alone as demeanour can be a deceptive and arbitrary characteristic. I do rely on the appearance, demeanour and manner of the witnesses that was observed at the time the incident took place and the memory and judgement of the witnesses.
[11] As I have said, both you and the complainant gave evidence. Both of you were clear and cohesive in their [sic] evidence. However, I do find that the complainant’s evidence has a greater ring of truth to the extent that I find the charge has been proven beyond reasonable doubt, and I provide my reasons as follows.
[16] Those reasons included that the complainant had called the police to report the incident; the complainant had marks on her face consistent with the alleged assault; the appellant gave inconsistent explanations as to how the marks came to
appear on the complainant’s face (it was either self-harm or carpet burn); and on the
3 Notes of Evidence at 11 – 12.
night of the alleged assault, the appellant had been drinking whisky and taking the synthetic cannabis product Kronic, which raised issues as to the accuracy of his memory and judgement.4 The Judge also observed that it was human nature for someone to feel emotion when their partner makes an admission of the kind made by the complainant.
[17] As the passages from Judge Sinclair’s decision quoted above at [15] indicate, the principal issue for determination by the Judge was whether she believed the evidence of the complainant sufficiently to support a finding of guilt beyond reasonable doubt. In circumstances where there were no other witnesses to the altercation during which the complainant alleged the assault occurred, other evidence tending to support her account assumed some importance. In that regard there was the evidence from one of the attending Police officers that the complainant had marks on her face which in the opinion of the Police officer were consistent with the recent assault as described to him by the complainant. While supportive, the evidence did not amount to corroboration strictly defined, because it was not independent.
Principles applicable to appeal against conviction
[18] An appeal against conviction is a general appeal to be conducted way of rehearing. The approach to be taken is that set out by Elias CJ in Austin, Nichols & Co Ltd v Stichting Lodestar:5
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances, it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
4 Ibid, at [12] – [15].
5 Austin, Nichols & Co Ltd v Stichting Lodestar [2008] 2 NZLR 141 (SC).
[19] Witness credibility played a key part in Judge Sinclair’s reasoning and it is a significant factor for consideration on appeal. To that end, these statements of Elias CJ in Austin, Nichols are also helpful:
[5] The appeal court may or may not find the reasoning of the tribunal persuasive in its own terms. The tribunal may have had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong. It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand. But the extent of the consideration an appeal court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment. An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result. On a general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.
…
[13] …The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important.
Principles applicable to appeal based on allegations of counsel incompetence
[20] The appellant’s appeal is principally based on allegations of counsel incompetence. In Sungsuwan v R, the majority of the Supreme Court provided the following guidance for assessing allegations of that nature:6
[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel's conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
[21] In the same case, Tipping J suggested the following approach:
[110] … Before an appellant can succeed in an appeal involving a complaint
about counsel's conduct, the appellant must demonstrate a miscarriage of
6 Sungsuwan v R, above n 2.
justice. What then are the ingredients of a miscarriage of justice for this purpose? Ordinarily two things must be shown. First, something must have gone wrong with the trial or in some other relevant way. Second, what has gone wrong must have led to a real risk of an unsafe verdict. That real risk arises if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong. It is, of course, trite law that an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe. The presence of a real risk that this is so will suffice.
Submissions
Appellant’s submissions
[22] The defended hearing date in the District Court was altered because of the appellant’s unavailability on the first scheduled date. Leading up to the defended hearing on 12 March 2012, the appellant was represented and advised by one lawyer, but it appears that the lawyer was unable to appear at the rescheduled hearing because of other trial commitments. He arranged for another lawyer in his firm to take over the representation of the appellant at the hearing, with the concurrence of the Legal Services Agency.
[23] The thrust of Mr Hoskin’s submissions in support of the appeal was that the appellant’s lawyers were incompetent. The lawyers responded to the allegations, at least in part, by affidavit. Since I have found the criticisms of their conduct to be largely unfounded, it is unnecessary for the purposes of this appeal to identify the lawyers involved so I shall refer to counsel who was first assigned to act for the appellant in the prosecution as “Counsel A”. I refer to the lawyer who took over the assignment and appeared at trial as “Counsel B”.
[24] In contending that Counsel A failed to prepare the appellant adequately for trial and that Counsel B failed to adequately put the appellant’s defence at trial, Mr Hoskin listed a number of matters, which can be summarised as follows:
(a) The Court was not made aware of an alternative possible explanation for the complainant having marks on her face. The alternative theory was that she was drunk and could have hurt herself by stumbling while walking upstairs.
(b)The Court was not made aware that the complainant had a possible motive for lying about the assault. The possible motive was that she did not want mutual friends to believe that her relationship with the appellant came to an end because she was unfaithful and therefore alleged an assault as the basis for their relationship ending.
(c) The Court was not provided with evidence in support of the alternative theory for her injuries and the possible motive for alleging an assault. Specifically, the appellant gave Counsel A the CD referred to above, which contained a collection of voice messages that the complainant left on the appellant’s phone. In the appellant’s opinion, the messages illustrated that the complainant was prepared to be malicious and fabricate or exaggerate her account the incident. Counsel B had the CD during the hearing but did not produce it or refer to it in any way.
(d)The appellant met Counsel B only on the morning of the trial and therefore had an insufficient opportunity to confirm all of his instructions.
(e) The appellant did not receive a brief of his evidence before the trial.
[25] Mr Hoskin also submitted that the appellant’s credibility and his defence were prejudiced because Counsel B did not sufficiently put it to the Court that the complainant was highly intoxicated on the evening of the assault and that the appellant had consumed only 300 ml of whisky.
[26] Counsel further argued that the appellant received no advice from either previous counsel about challenging Constable Goodhue’s evidence as to admissions and other statements allegedly made by the appellant before and after his arrest. The fact that the constable had not taken thorough notes and was recalling events from months earlier should have affected the weight to be attached to his evidence.
[27] Mr Hoskin further submitted that, because the defence was not properly put to the Court, the appellant was convicted in circumstances where Judge Sinclair had not heard all of the relevant evidence, and that, in any event, the decision was against the weight of the evidence before the Court.
Respondent’s submissions
[28] For the respondent, Mr Fotherby argued that the appellant’s affidavit, admitted for the purposes of the appeal, and appeal counsel’s submissions are an attempt to rearticulate the evidence that the appellant gave at trial, and to embellish it. He submitted that the Court should resist the appellant’s attempt “merely to
strengthen the evidence or bolster up the case made at the trial”.7
[29] Mr Fotherby submitted there is little evidence of counsel incompetence and, more importantly, that no miscarriage of justice can be said to have arisen. That is because there was clear evidence that reasonably led the Judge to a safe finding of guilt.
[30] It is submitted for the respondent that the appellant’s evidence cannot explain why the complainant called the police and does not provide a cogent alternative to explain how the complainant might have received recent marks on her face. The Judge was entitled to accept, in all the circumstances, that the complainant’s evidence proved the charge beyond reasonable doubt.
Allegations of inadequacy of preparation for trial and misconduct of the defence
[31] The appellant swore and filed an affidavit outlining his instructions to counsel and his views of what occurred at the hearing. Because of the grounds of the appeal, the appellant appropriately waived privilege in respect of the communications between Counsel A and Counsel B respectively and him. Counsel A and Counsel B each filed affidavits and provided Mr Hoskin with some
documents from their files, including a draft brief of evidence to be given by the
7 The King v Mareo (No. 2) [1946] NZLR 297 (CA) at 305, cited in R v Arnold [1985] 1 NZLR
193 (CA) at 197.
appellant which had been prepared by Counsel A. Mr Hoskin is critical of the failure or inability of former counsel to provide their entire files to him for the purposes of the appeal. It is unnecessary in the circumstances for me to determine why the full files are no longer available.
[32] In a callover minute dated 10 May 2013, Woolford J observed that Mr Fotherby had only just received Mr Gabriel’s affidavit and accordingly required time to consider whether or not to obtain an affidavit in response. The Judge observed that if an affidavit was obtained from the appellant’s former counsel there was “likely to be some factual dispute which may need to be resolved by both the appellant and ... [Counsel A] giving evidence and being cross-examined at the hearing of the appeal.” Accordingly, he reserved a half day for the hearing of the appeal.
[33] Mr Hoskin apparently took the view that that was sufficient notice of an intention to cross-examine. It did not assist the Court or counsel for the respondent that Mr Hoskin did not give express notice that he wished to cross-examine either Counsel A or Counsel B on their affidavits until he notified Mr Fotherby on Thursday, 4 July and that he did not also notify the Court. He also failed to file his submissions by 24 June 2013 as directed by Woolford J on 31 May 2013, and did not file and serve them until 5 July.
[34] In the circumstances, the Court was not in a position, when the appeal was called at 2.15pm yesterday, to accommodate the hearing of evidence by way of cross-examination and the submissions of counsel in the time which had been allocated for the hearing. I indicated by a Minute issued shortly before the hearing, when the Registry became aware that Counsel A was unwell and not available for cross-examination in any event, that I would make a decision about requiring the witnesses to be available for cross-examination after hearing argument from counsel.
[35] When the appeal was called, therefore, I invited Mr Hoskin to identify how cross-examination of the appellant’s former counsel would assist the Court to determine the appeal. That required counsel to develop the grounds of the appeal so far as they related to allegations of counsel’s incompetence.
[36] Mr Hoskin identified first the failure of Counsel A to make available to him a copy of the CD audio file given to him by Telecom on which it was said the voice messages left for the appellant by the complainant were recorded. It was said that the audio file contained data which suggested the complainant had a motive for lying about being assaulted by the appellant. The appellant said in his affidavit that, in one of the messages he received, the complainant said she was going to tell the police he beat her up. He said he took this to mean she was prepared to tell the police false things about him.
[37] Evidence of a message to that effect would be highly relevant if it had been left for the appellant prior to the complainant making her allegations of assault to the police. But as the appellant’s affidavit and the draft brief of evidence attached to it make clear, the messages were left on the appellant’s phone some two weeks after the incident during which the complainant said he assaulted her. By then, the complainant had complained to the Police about the assault and the appellant had been arrested and charged, and had appeared in court. In these circumstances Mr Hoskin was left to speculate that there might have been something on the audio- files to indicate that the complainant’s prior complaint was fabricated or some other material which would have been of assistance to the appellant’s case if the recording was presented in evidence.
[38] The difficulty with counsel’s proposition, however, is that the appellant did not say in his affidavit that the content of the messages was of that nature, or related to anything that could have been relevant to the issues at the hearing. In my view, that led inevitably to the inference that Counsel B had properly decided that nothing would be served by leading the audio file evidence at the hearing.
[39] Next, Mr Hoskin criticised Counsel B for not taking proper instructions from the appellant before the hearing, providing the appellant with a copy of his draft brief, and explaining to the appellant what evidence would be led from him. There is no evidence in the transcript of the hearing that the appellant was in any way disadvantaged by the late change of counsel. The appellant gave forthright evidence on the key matters which had to be covered. After all, he was required only to recall
what had occurred and he had counsel to assist him by prompting his evidence with questions.
[40] The next criticism was that Counsel B had failed to explore fully the extent to which the complainant was intoxicated at the time of the alleged assault. He suggested that the cross-examination of the complainant on the point was inadequate. The transcript of the hearing reveals, however, that Counsel B established in his cross-examination that the complainant had been out for lunch with her daughter and her husband that day; that she had also had a few drinks at home with those family members that afternoon; and that she had been drinking for some time before the appellant arrived home. It was put to the complainant in cross- examination that she was “quite drunk” by the stage she went upstairs (she says, after having been assaulted; the appellant says after they had argued). The witness accepted that she had had a few wines but would not say she was “quite drunk”. I find that the topic of the complainant’s state of intoxication was adequately explored by counsel in cross-examination and that continuing to press the witness on that issue was unlikely to have produced any concession likely to assist the appellant.
[41] Mr Hoskin was also critical of the cross-examination of the complainant on the circumstance of the assault, arguing that it was not properly conducted. A reading of the transcript, however, indicates that the complainant was cross- examined about which hand the appellant used to grab her chin and which hand he had used to slap her. Although the complainant said that she could not remember, it was put to her (and she conceded) that she had told the police that the complainant had used his left hand to slap her; she confirmed that he was right-handed. Mr Hoskin did not say what else could have been put to the witness in an effort to cast doubt on her account of the assault itself.
[42] Mr Hoskin’s next criticism of Counsel B was that he failed to explore adequately in the cross-examination of the complainant, or in the evidence-in-chief of the appellant, alternative explanations for the marks on the bottom right lip and right nostril of the complainant which the police officer considered to be consistent with her account of the assault. It was suggested in particular that the appellant had informed Counsel B that the complainant had fallen as she was heading upstairs after
leaving the room where the argument with the appellant had taken place. The appellant had suggested to the police that the marks had the appearance of a carpet burn and it appears that the alternative defence theory was that there was at least a possibility, given that the complainant had been drinking, that she had tripped on the stairs and injured herself.
[43] The appellant’s suggestion to the police that the injuries were self-inflicted was made at an early stage after his arrest. But when the appellant gave evidence at the hearing he said in evidence-in-chief that the marks looked like carpet burns and that the complainant had mentioned “in one of her statements” that she ran up the stairs “so [it is] possible that she slipped”. This is entirely speculative and I am not persuaded that criticism can be levelled at counsel who represented the appellant at trial for not pursuing it. If anything, the failure of defence counsel to put the suggestion directly to the complainant operated to the disadvantage of the police in that the complainant was not given an opportunity to comment on this suggestion.
[44] I accept, however, the issue of whether there was an alternative explanation for the marks on the complainant’s face was of some interest to the Judge. As a matter of common sense, the marks provided a degree of support for her evidence she had been slapped hard across the face. I address below the question of whether the issue was dealt with properly by the trial Judge.
[45] The next criticism levelled at Counsel B by Mr Hoskin was that he had failed in cross-examination to explore the proposition that the complainant had fabricated the allegation of assault so that it would provide an explanation to people who were friendly with the appellant and her for the break-up of their relationship. But the proposition that an allegation of assault might provide a convenient smoke screen covering a break-up which was in fact motivated by the complainant’s infidelity required first, knowledge on the part of the appellant’s and complainant’s circle of friends that their relationship was in fact breaking up and second, evidence to indicate why a false allegation of assault was likely to assist the complainant’s purposes in that regard. Mr Hoskin conceded there was in fact no suggestion prior to the night of the alleged assault that the complainant and appellant were breaking up,
even if other people had become aware that she had slept with one of the appellant’s
rugby club friends some days prior to the alleged assault.
[46] It was also suggested by the appellant in support of the appeal that the reason the complainant became upset with him, and the argument between them developed, was not his jealousy or anger at the revelation of the complainant’s infidelity but that he had refused to eat the meal which she had cooked for him. He said that he tried to eat the fish dinner which the complainant had prepared but that it made him feel sick, possibly because of the amount he had had to drink and the effects of the synthetic cannabis. He said the complainant became agitated at that and he had told her that he was not prepared to put up with her being violent towards him.
[47] When cross-examined on this point by Counsel B, the complainant could not remember who had cooked the meal but rejected the suggestion that that was the cause of the argument. Constable Goodhue said in evidence that when he had noticed the meal on the table at the time he responded to the complainant’s call, the appellant said he had cooked it. He was cross-examined on this point but maintained that that was what he had been told by the appellant. Mr Hoskin was critical of Counsel B for not pursuing that matter further in cross-examination as it went to the important point, in favour of the defence, that it was the complainant and not the accused who became particularly angry.
[48] There is no basis for that criticism, however, because Counsel B asked the appellant in evidence-in-chief who had cooked the meal. He said it was cooked by the complainant and he denied telling the constable that he had cooked it. The appellant was then asked by his counsel whether, when the meal was put in front of
him, there was any discussion about it. His answer was:8
A. Not really. After she told me what happened, so I just kind of lost the appetite. I tried biting one of the fish, but I almost vomited it out again.
[49] There is no evidential foundation for an argument that Counsel B was negligent in not pursuing that line of defence.
8 Notes of evidence at 17.
[50] It will be apparent from this account of Mr Hoskin’s criticisms of trial counsel that the argument boiled down to the proposition not that counsel had failed to cross-examine on relevant matters but that he had not done a good enough job. Criticism of that kind, made by fresh counsel who take instructions from an aggrieved offender following conviction, falls well short of meeting the required threshold to establish, to use Tipping J’s words in Sungsuwan v R, that “something
must have gone wrong with the trial.”9
[51] After hearing from Mr Hoskin on these matters and having the benefit of brief submissions by Mr Fotherby on behalf of the respondent, I was able to come to the clear view that there was no merit in that ground of appeal without resorting to any contestable assertions in the affidavits of the appellant’s former lawyers. I was satisfied that the appeal ground based on the allegations of counsel incompetence had no merit. I ruled in the course of the hearing that it would be unnecessary in the interests of fairness to the appellant to require Counsel A and Counsel B to attend for cross-examination on their affidavits.
[52] Furthermore, the Supreme Court’s test for setting aside a conviction on the grounds of trial irregularity or counsel incompetence requires the appellant to satisfy the Court not only that there has been some error or irregularity but also, more importantly, that what went wrong “must have led to a real risk of an unsafe
verdict”.10 This aspect of the counsel incompetence argument is closely related to
the second major ground of appeal which was that the evidence was insufficient to justify a conviction.
9 Sungsuwan v R, above n2 at [110]. At [115] Tipping J said that there is a “high threshold” for establishing there was an unfair trial. See also at [66] where the majority said that there will be cases where particular acts or omissions of counsel may in retrospect be seen to have affected the outcome but they were deliberately judged at the time to be in the best interests of the accused. Where the conduct was reasonable this will not mean there was a miscarriage of justice. An appeal will not normally be allowed because judgment made by trial counsel which could well be made by another competent counsel in the course of a new trial. In M v R [2010] NZCA 550 at [46] the Court of Appeal said that trial counsel are invariably required to make judgment calls in conducting a defence. Just because certain aspects of a defence case might have been conducted differently does not give rise to counsel incompetence.
10 See Tipping J in Sungsuwan.
Submission that miscarriage of justice occurred/evidence did not justify conviction
[53] After I had ruled that the ground of counsel incompetence had not been made out, Mr Hoskin was provided with an opportunity to address me further on the proposition that the evidence adduced did not justify the conviction. He properly acknowledged that many of the points which he might have wished to make in that regard had been made by him in discussing the issue of trial error and miscarriage of justice on that ground.
[54] As Judge Sinclair properly recognised in giving the reasons for her decision, the nub of case was the credibility of the complainant and the appellant respectively. The Judge was faced with a clear allegation of assault and evidence of a recent examination of the complaint’s face by a police officer consistent with a recent slap with the appellant’s left hand (the marks being to the right side of the complainant’s mouth and nose). I acknowledge, however, that Judge Sinclair may have inadvertently misled herself by referring to the appellant having given different answers as to potential innocent explanations for the marks on the complainant’s
nose and lip. In her decision, the Judge commented11 on the fact that the appellant
had said to the police after the incident that night that the marks had come from the complainant self-harming, but then suggested he had given a conflicting answer by suggesting that the marks were the result of what he believed were carpet burns.
[55] In fact, the appellant’s explanation appeared to have been intended to convey the possibility of an accidental fall onto the floor or, more likely, a trip on the stairs. More fundamentally, however, the appellant was under no obligation to suggest an innocent explanation for the apparent injury, so even if he had suggested two different possible innocent explanations, doing so could not properly have been held
against him on a credibility basis.12 He was under no obligation to prove anything.
11 Police v Gabriel, above n 1 at [13].
12 In R v G CA414/03, 26 October 2004, the Court of Appeal rejected a submission that the accused was required to give an explanation for the allegations against him. The Court said at
[66] that if an accused denies the offending he cannot do more than make that denial and so he is not bound to provide an explanation for the offending. See also ss 37 and 38 of the Evidence Act 2006 which relate to the admissibility of veracity evidence. In R v Tepu [2008] NZCA 460, [2009] 3 NZLR 216 the Court of Appeal noted at [20] that the test under s 38(2) is not met where the accused simply denies guilt and gives evidence of innocence.
[56] In the end, however, I do not consider that that matter weighed heavily with the Judge. What Judge Sinclair held to be significant about the complainant’s evidence was that it appeared to the Judge to be compelling and believable.13 In the Judge’s view, it was supported to a degree by the marks to her face, and also by the fact that she telephoned the police to complain and that the apparently fresh marks were visible to the police officers who attended. The Judge was also persuaded, with justification, that the complainant’s account had a ring of truth in that she described an argument flaring up almost immediately after she confessed to the appellant that
she had recently slept with one of his friends.
[57] The Judge considered that in circumstances where the appellant admitted to being under the influence of both alcohol and two synthetic cannabis cigarettes, it was entirely plausible that he reacted in an aggressive manner. Further compelling corroboration of the complainant’s account was available to the Judge, and referred to by her, in the evidence of the police officer that the appellant was too drunk or affected by stimulants to be formally interviewed and that he had volunteered the damaging suggestion to the police officer to imagine what more he (the appellant) would have done if he had not had counselling about his anger.
[58] To the extent that it may have been raised as an issue of credibility, Judge Sinclair dealt with the differing opinions as to who had made the meal.14 She accepted the constable’s evidence on the point and observed that his memory and judgment was more likely to be accurate than that of someone who had been drinking and taking Kronic.
[59] In circumstances where the Judge was faced with a direct conflict between the evidence of the complainant and that of the appellant on the central issue of whether the assault had taken place, the Judge was required not only to choose which witness she found to be more reliable or credible, but also to be satisfied that she could rely on the complainant’s evidence to prove the allegation of assault beyond
reasonable doubt. The Judge properly directed herself on this point.15
13 At [12].
14 At [14].
15 At [9].
[60] The straightforward manner in which the Judge found the complainant to have given her evidence; the presence of fresh marks on the complainant’s face consistent with an assault as alleged; the potential for a violent reaction by the appellant, under the influence of drugs and alcohol, when learning that his partner had had recent intercourse with one of his friends; and the inculpatory nature of the appellant’s voluntary statements to the police, more than justified the conclusion that the prosecution had proved the allegation of assault beyond reasonable doubt.
[61] In this case Judge Sinclair had the particular advantage of assessing the witnesses first hand and drawing conclusions about credibility in that light. I am not persuaded that it would be proper for this Court to interfere with her conclusions.
Decision
[62] There is no merit in either ground advanced by the appellant and I dismiss the appeal accordingly.
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Toogood J