H (SC 54/2023) v The King - [2023] NZSC 120

NOTE: DISTRICT COURT ORDER ([2022] NZDC 11230) PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 54/2023
[2023] NZSC 120

BETWEEN	H (SC 54/2023) Applicant
AND	THE KING Respondent

Court:	Glazebrook, Williams and Kós JJ
Counsel:	J D Lucas for Applicant E J Hoskin for Respondent
Judgment:	8 September 2023

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant was convicted, following a jury trial in the District Court, of sexual offending against his daughter when she was between six and nine years old. He was sentenced to 10 years and four months’ imprisonment.[1] His conviction appeal was dismissed in the Court of Appeal,[2] and he now seeks leave to bring a second appeal on a single ground. That ground is neatly described by the applicant’s counsel Mr Lucas, as follows: what should happen when trial counsel does not fully advance the defence in front of the jury that had been agreed upon prior to trial?

Factual background

[1]R v [H] [2022] NZDC 11230 (Judge Zohrab).

[2]H (CA308/2022) v R [2023] NZCA 135 (Brown, Lang and Palmer JJ).

In two EVIs at the end of 2014, when the complainant was 11, she disclosed offending by the applicant including digital penetration of her anus and vagina, masturbating in front of her, putting his tongue in her mouth, and rape. The applicant denied the allegations. As the complainant did not wish to proceed further, no charges were laid at the time, but in 2019 the complainant reactivated her complaint. Charges were laid.
In the Court of Appeal the applicant advanced two grounds—trial counsel error and several challenges to the trial Judge’s summing up. It is necessary only to traverse that Court’s treatment of the first ground.
In that respect trial counsel filed an affidavit. In it counsel confirmed that the applicant believed the complainant’s mother (the applicant’s ex-wife) had prompted the complainant to make allegations against him. His view was the complainant’s mother either encouraged the complainant to lie or manipulated her recall and implanted false memories. Either way the mother (who also gave evidence) was lying, and the complainant was either lying or mistaken as a result of her mother’s manipulation. The agreed theory of the case was recorded by trial counsel in two pre‑trial file notes.
When trial counsel cross-examined the complainant (now 19 years old) he pursued the false memory limb of the defence with some vigour but made the decision, on his feet as…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2023] NZSC 120
Decision Date: 8 September 2023

CaseChat Overview and Summary

The applicant, H, sought leave to appeal against his conviction and sentence for sexual offences committed against his daughter. The application was heard by Glazebrook, Williams, and Kós JJ in the Supreme Court of New Zealand. The applicant was convicted in the District Court and his appeal against the conviction and sentence was dismissed by the Court of Appeal. The applicant now seeks leave to bring a second appeal on the ground that trial counsel did not fully advance the defence that had been agreed upon before the trial. The Court of Appeal had previously found that trial counsel's decision not to challenge the complainant's credibility did not amount to a breach of the applicant's fundamental rights. The applicant argued that the Court of Appeal's reasoning was incorrect and that this Court should correct it.

The Supreme Court considered whether the decision by trial counsel not to challenge the complainant's credibility amounted to a significant error that could give rise to a plausible risk of miscarriage of justice. The Court found that while the decision may be a question of public importance, in the factual context of this case there was no plausible risk of miscarriage of justice even if the decision was an error. The tactical decision made by counsel was based on an assessment of the implications for the defence of a direct challenge to the complainant's credibility. The Court concluded that the Court of Appeal's reasoning was correct and dismissed the application for leave to appeal.

No further appeal will be allowed. The Supreme Court dismissed the applicant's application for leave to appeal against his conviction and sentence for sexual offences committed against his daughter. The Court found that the decision by trial counsel not to challenge the complainant's credibility did not amount to a significant error that could give rise to a plausible risk of miscarriage of justice.

Orders