Havea v The the King
[2022] NZCA 650
•20 December 2022 at 12.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA395/2020 [2022] NZCA 650 |
| BETWEEN | LUIGI HAVEA |
| AND | THE KING |
| Hearing: | 27 September 2022 |
Court: | Miller, Brewer and Moore JJ |
Counsel: | NTC Batts for Appellant |
Judgment: | 20 December 2022 at 12.30 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe applications for leave to adduce fresh evidence are declined.
CThe appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Moore J)
Background
On 29 February 2016, Jindarat Prutsiriporn was kidnapped from a car outside her home in Waterview, Auckland. The kidnappers threatened to shoot her and forced her into the boot of another car. Some 22 hours later, she attempted to escape while the car was moving. She opened the boot and fell onto the road. Her head hit the pavement and fractured her skull. She died of her injuries.
Four of those involved pleaded guilty to kidnapping. The appellant, Luigi Havea, and four co-defendants proceeded to trial. The jury found each guilty of kidnapping[1] and manslaughter.[2]
[1]Crimes Act 1961, s 209. Maximum penalty of 14 years’ imprisonment.
[2]Sections 160(2)(d), 171 and 177. Maximum penalty of life imprisonment.
On 18 September 2017, Palmer J sentenced Mr Havea to 10 years and three months’ imprisonment, with a minimum period of imprisonment of five years and one month.[3]
[3]R v Liev [2017] NZHC 2253 at [90].
Some two years and 10 months later, Mr Havea seeks leave to appeal his conviction. He claims that a miscarriage of justice resulted from trial counsel failing to:
(a)properly advise on the importance of giving or calling evidence;
(b)follow instructions to call particular witnesses or call witnesses that otherwise should have been called; and
(c)advance the defence case as instructed.
Leave to appeal out of time
Mr Havea’s proposed appeal is out of time.[4] An extension of time is required.[5] Whether such an extension is granted invariably reduces to the reasons for the delay and the merits of the proposed appeal.[6]
[4]Criminal Procedure Act 2011, s 231(2).
[5]Section 231(3).
[6]Mikus v R [2011] NZCA 298 at [26] citing R v Slavich [2008] NZCA 116 at [14].
Mr Havea has made an affidavit explaining the reasons for the delay. He says that the trial attracted the attention of gang members in prison. During the trial, some paperwork went missing from his cell, including pictures of him wearing a gang patch that did not belong to him. He claims these images angered members of the gang. He says he knew they would seek retribution and he feared for his and his family’s safety.
Mr Havea deposes that his fears were well founded. He says that after his trial his family home was burnt down. He was beaten up three times by gang members. He was stabbed by a gang member using a shank. He says the gang members said he claimed to be a gang member when he was not. They called him a “snitch”.
Mr Havea says that these incidents of violence ceased when he was transferred to Waikeria Prison, where no one knew of his background. He says that only then did he have the capacity to contemplate an appeal against conviction. He describes his case officer at Waikeria Prison as “supportive and helpful”.
In opposing an extension of time, Mr Lillico, for the Crown, points out that even after Mr Havea was shifted to Waikeria Prison it still took him another six months to file an appeal.
While we accept there was some delay involved, we consider it has been, for the most part, explained by Mr Havea. The merits of the appeal turn on the facts, which are informed by the credibility and reliability of witnesses who gave evidence at the appeal hearing.
We consider that an extension of time should be granted.
The offending
It is first necessary to outline the facts of the offending.[7] The following summary is drawn from Palmer J’s comprehensive sentencing notes.
[7]See R v Liev, above n 3, where these were summarised by Palmer J in his sentencing notes.
Ms Prutsiriporn was actively involved in the drug world. Through this she developed a close relationship with one of Mr Havea’s co-offenders, Seng Lek Liev. Ms Prutsiriporn and Mr Liev were arrested and charged with drug offending in 2015. After that their relationship broke down.
The motive behind Ms Prutsiriporn’s kidnapping is unclear. However, Mr Liev was at the centre of it. He asked Aphichart Korhomklang, Sodarith Sao and Sovanarith Ing to help him.
Mr Liev is also said to have arranged for Mr Havea and his brother, Panepasa Havea, to provide the muscle. Panepasa was a member of the “Ghost Unit” of the East Chapter of the Head Hunters gang, together with Masi Vaifale, Joseph Haurua and Becoylee Paleaasina. Mr Havea was closely associated with the Ghost Unit. An available inference from text messages adduced in evidence at the trial is that the Ghost Unit was hired to assist and expected to be rewarded for its services.
Two attempts were made at kidnapping Ms Prutsiriporn. The first, which failed, took place on 14 February 2016. Photographs found on a phone associated with Mr Havea and polling data placed him and others together in Mission Bay that day. Later that night, Ms Prutsiriporn’s Waterview house was staked out. Those who had met earlier in Mission Bay were in the same vicinity at that time.
Ms Prutsiriporn was not home. A passer-by called the Police reporting a group behaving suspiciously. At around 2:35 am, the Police arrived and spoke to the group. They claimed that they were waiting for a shift change in their security work. They dispersed.
On 29 February 2016, a new plan was conceived. Mr Liev told Mr Korhomklang to lure Ms Prutsiriporn out of her house in Waterview. He did so by asking a friend, Aenoi Khammanivong, to buy drugs from her. The Ghost Unit and associates positioned themselves nearby in three cars. Mr Sao and Mr Liev were also in the vicinity. Mr Liev issued instructions to Mr Korhomklang through Mr Sao’s phone.
At around 9:30 pm, Ms Prutsiriporn got into the back seat of Mr Khammanivong’s car. Some 30 seconds later, Panepasa and an unidentified man opened the back doors, threatened to shoot Ms Prutsiriporn and threatened her family. They removed her and placed her in another car.
Ms Prutsiriporn was detained by the group for the next 19 hours. Exactly what happened to her during that time is not clear. It appears that Mr Havea issued directions to others about where to go.
By approximately 5:00 am on 1 March 2016, Mr Vaifale and Mr Haurua had custody of Ms Prutsiriporn. They took her to Mr Haurua’s address. At some time there they bound her using a sheet. At around 10:00 am she was taken to Mr Korhomklang’s house in Mangere. She was detained in the garage without food or water until about 4:30 pm.
During this time Mr Liev and Mr Sao arrived at the house, having been driven there by Mr Ing. They are said to have talked to Mr Havea and Mr Korhomklang about what to do with Ms Prutsiriporn. Mr Havea decided she should be taken to an associate’s house in Papatoetoe.
Mr Haurua and Mr Vaifale then went home. Mr Korhomklang drove Mr Ing’s car, with Ms Prutsiriporn bound in the boot, to the Papatoetoe house. Mr Liev instructed Mr Sao to stay with Ms Prutsiriporn and the car for the next two or three hours until he returned.
Shortly before 7:00 pm, Mr Sao and Mr Ing heard sounds coming from the boot of the car. Mr Sao drove off with Ms Prutsiriporn still in the boot. It is believed this was to prevent others from hearing the sounds. Ms Prutsiriporn had found a knife and a chef’s steel in the boot. It seems likely she used them to escape from the boot. Mr Sao attempted to text Mr Liev saying “she up”, “what do”. He sent the message to the wrong number.
At around 6:58 pm, the car was approaching traffic lights in Papatoetoe. The boot opened. Ms Prutsiriporn, still bound, emerged. She fell out. Her head hit the tarmac, fracturing her skull. She later died of these injuries.
The trial
Mr Havea pleaded not guilty to charges of manslaughter and kidnapping. He and four co-defendants, Mr Liev, Mr Korhomklang, Mr Vaifale and Mr Haurua proceeded to trial.
Evidence against Mr Havea
The Crown case was that Mr Liev engaged the Ghost Unit to kidnap Ms Prutsiriporn. Mr Havea was said to be one of Mr Liev’s points of contact with that group, together with his brother, Panepasa. While some of the evidence centred around whether Mr Havea was actually a member of the Ghost Unit or the Head Hunters, the Crown submitted that it did not matter. He was clearly associated with those who were. It was common ground that Panepasa was a patched member of the Head Hunters. Mr Havea was not, but the evidence adduced at trial revealed that he had attended Head Hunters events, visited their headquarters in Marua Road and was photographed wearing Head Hunters’ clothing and regalia.
An important component of the Crown case against Mr Havea turned on the use of two particular cell phone numbers claimed by the Crown to be used by Mr Havea. It was from these cell phones that text messages connected to the events were sent and received, and photos were taken. Polling data also linked the user of the phones to the offending. The Crown submitted that the evidence from these phones demonstrated that Mr Havea was involved in taking Ms Prutsiriporn from her home, directed the Ghost Unit members where to go and received updating information by text.
The second piece of evidence relied on by Crown in its case against Mr Havea came from Mr Ing, who identified Mr Havea in a formal identification process. Mr Ing gave evidence under the protection of a grant of immunity. He said that Mr Havea, who he described as “the ugly guy”, was present at Mr Korhomklang’s house in Mangere (“Wayne Drive”) at the time Ms Prutsiriporn was detained there. He claimed that Mr Havea issued directions to the others as to where she should be taken next. When challenged in cross-examination that he was mistaken in his identification, Mr Ing claimed he was 100 per cent sure Mr Havea was the “ugly guy” he had seen at Wayne Drive. When a montage containing a photograph of Panepasa was shown to him, he said he was unable to recognise anyone.
The defence put to the jury
In his closing address, Mr Kan, trial counsel for Mr Havea, challenged each of these aspects of the Crown case. Mr Kan advanced Mr Havea’s case to the jury on the basis that he was not present at Wayne Drive during the kidnapping.
First, as for Mr Havea’s alleged membership of the Ghost Unit and any connection to the Head Hunters, he put it to the jury that any connection Mr Havea had to his co-defendants arose through his security work and not any gang.
Secondly, Mr Kan challenged the attribution of the phone numbers said by the Crown to be associated with Mr Havea. Mr Kan spent some time developing a theory that it was not Mr Havea who was operating the phones at the relevant periods and that the evidence was more consistent with the user being Panepasa.
He submitted that others, likely to be Panepasa, used a phone number, ending in the digits 831 (“the 831 Number”) at various times during the kidnapping. It was also put to the jury that they could not be sure that another number ending in the digits 919 (“the 919 Number”) was used by Mr Havea because it was also used by friends and family. Mr Kan’s submission to the jury was that it was more likely that Panepasa was the one who had the phones in his possession.
Thirdly, as for Mr Ing’s identification of Mr Havea as the man at Wayne Drive, Mr Kan submitted that Mr Ing was mistaken when he identified him as “the ugly guy” at the address. Mr Kan put it to the jury that Mr Havea did not match that description. The identification was also unreliable because Mr Havea’s distinctive tattoos were not remembered by Mr Ing. He submitted that Mr Ing was wrong and that, in fact, the man he identified as Mr Havea was actually his brother, Panepasa.
Taking this combination of factors into account, Mr Kan submitted that the jury could not be sure Mr Havea was involved in the kidnapping which ultimately led to Ms Prutsiriporn’s death.
Approach on appeal
This Court must allow the appeal if it is satisfied that the jury’s verdict was unreasonable or if a miscarriage of justice has occurred for any reason.[8] A miscarriage of justice includes any error, irregularity, or occurrence in or in relation to or affecting the trial that:[9]
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[8]Criminal Procedure Act, s 232(2)(a) and (c).
[9]Section 232(4).
A real risk arises if there is a reasonable possibility that a more favourable verdict might have been delivered if nothing had gone wrong.[10]
[10]Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
In R v Scurrah, this Court set out the following approach to appeals against conviction on the basis that trial counsel error occasioned a miscarriage of justice:[11]
[17] The approach appears to be, then, to ask first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.
[18] On the other hand, where counsel has made a tactical or other decision which was reasonable in the context of the trial, an appeal will not ordinarily be allowed even though there is a possibility that the decision affected the outcome of the trial. This reflects the reality that trial counsel must make decisions before and during trial, exercising their best judgment in the circumstances as they exist at the time. Simply because, with hindsight, such a decision is seen to have reduced the chance of the accused achieving a favourable outcome does not mean that there has been a miscarriage of justice. Nor will there have been a miscarriage of justice simply because some other decision is thought, with hindsight, to have offered a better prospect of an outcome favourable to the accused than the decision made.
Mr Havea’s grounds of appeal
[11]R v Scurrah CA159/06, 12 September 2006.
Mr Havea’s grounds of appeal are that Mr Kan erred by failing to:
(a)properly advise on the decision to give or call evidence;
(b)follow instructions to call particular witnesses or call witnesses that should have been called; and
(c)advance the defence case as instructed.
Did trial counsel fail to properly advise on the decision to give or call evidence?
On appeal Mr Batts, for Mr Havea, submitted that it was critical for the defence to respond to the relevant text messages which the Crown attributed to Mr Havea and to contradict Mr Ing’s identification, either by Mr Havea giving or calling evidence. Mr Kan had detailed instructions in the form of three statements made by Mr Havea for the purposes of his defence. These tended to exculpate him. However, instead of adducing evidence from Mr Havea consistent with the statements, Mr Kan advanced a narrative to the jury which was wholly inconsistent with what Mr Havea had told his counsel.
Mr Batts submitted that without giving evidence, Mr Havea’s defence was effectively doomed. He noted that while Mr Havea expressed some concern about calling others as witnesses, there is no evidence that he had any reservations about giving evidence himself. Mr Kan did not record any written instructions on Mr Havea’s election not to give evidence, despite keeping other detailed records. In Mr Batts’ submission, that is consistent with any advice being inadequate.
It is well-established that a defendant’s election whether to give evidence and to advance a defence based on their version of events are fundamental decisions on which trial counsel’s failure to follow specific instructions will generally give rise to a miscarriage of justice.[12]
[12]Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].
Although the election as to whether to give evidence is the defendant’s decision, this must be an informed decision and counsel must “ensure that the client has the necessary information, conveyed in an appropriate and timely way, to make the decision”.[13] That includes an explanation of how the decision could strengthen or weaken the defence case, taking into account the nature of the case.[14]
[13]Jane v R [2019] NZCA 384 at [20] citing Tarring v R [2016] NZCA 452 at [26]; and Chambers v R [2011] NZCA 218 at [5].
[14]At [21].
On the appeal it was common ground that Mr Havea’s case at trial would likely have been strengthened had he elected to give or call evidence. The combination of the text messages, polling data and Mr Ing’s identification meant that the evidence of his involvement in the kidnapping was strong. The defence needed to explain why these aspects of the evidence did not necessarily implicate Mr Havea in the kidnapping.
As noted, Mr Kan obtained three detailed briefs of evidence from Mr Havea. The first was on 1 May 2017, the day the trial started. Two supplementary briefs, both dated 23 June 2017, were also obtained. They are detailed. In the first brief, in respect of the two key planks of the Crown case against him, Mr Havea said that although he did travel to Wayne Drive, it was to pick up his friend, Mr Haurua. He claimed he never went inside the address and he had nothing to do with Ms Prutsiriporn’s kidnapping. The second brief duplicated much of what the first brief covered but also covered his denial of the prosecution’s claim he was affiliated to the Head Hunters and detailed the extent to which others had access to and routinely used the phones the Crown attributed to him. The third brief was entirely devoted to responding, call by call and message by message, to the Crown’s lengthy table listing the use of the 831 and 919 numbers over the relevant period. Mr Havea accepted some calls and messages involved his use of the phone but others, including those tending to directly implicate the user, were not made or received by him.
Although the defence at trial was that Mr Havea was never at Wayne Drive, on appeal, he accepted in his affidavit evidence that he was present at the address but only to pick up and drop off others. He maintained he had no involvement in or knowledge of the kidnapping. Without giving or calling evidence to that effect, it is difficult to see how trial counsel could have advanced a defence on the basis of this more nuanced account of his presence. In advancing to the jury the defence he did, Mr Kan went as far as he possibly could, given the limits on his professional obligations as an officer of the Court.
Although the merits of giving or calling evidence in the circumstances of Mr Havea’s case are obvious (particularly in hindsight), whether to do so was a decision for Mr Havea in light of trial counsel’s advice. The fundamental issue is whether appropriate advice was given in order for Mr Havea to make an informed decision. The actual wisdom of the decision is peripheral.
On this point, Mr Havea and Mr Kan gave conflicting evidence. Resolution of this issue necessarily involves this Court determining which account is to be preferred.
Mr Havea’s evidence is that he does “not remember whether [he] personally wanted to give evidence”. He says that he would have done what Mr Kan advised him to do, had he received advice on the point. Simply put, if Mr Kan had told him to give evidence, he would have given evidence. Although he said he would have been concerned about saying the wrong thing, his position is that he would not have ignored counsel’s advice.
In contrast, Mr Kan says it was a “sure thing” that he advised Mr Havea on the election to give evidence. Mr Kan says he told him that the Crown carried the burden of proof and it was his choice whether to give or call evidence in response. In particular, he deposed that he “vividly” recalled telling Mr Havea that since he refused to call others as witnesses, the defence would have nothing to counter the Crown case if he did not give evidence himself.
Mr Kan says that Mr Havea’s refusal to give evidence was firm throughout the trial. He described it as “very frustrating”, attempting to defend a client who repeatedly told his defence team that he could not give evidence because the “gang code” precluded it. When cross-examined on this point, Mr Kan maintained his position that Mr Havea told him he would not give evidence for this reason. Although Mr Havea claimed he was not a member of the gang, he nevertheless observed that code of silence.
We prefer Mr Kan’s evidence on this point, for the reasons which follow.
First, although there is, of course, no presumption that trial counsel is inherently more credible than an appellant alleging trial counsel error,[15] we found Mr Kan to be both credible and reliable. He made appropriate concessions, including accepting that there were details about the case and his client’s defence which he could not remember. That is entirely understandable given the trial took place almost three years ago. However, on the question of his dealings with Mr Havea over whether to give evidence, his account was corroborated by other supportive details which indicate that it is accurate. That is consistent with the importance of the decision to give or call evidence in the circumstances of Mr Havea’s case. In addition, much of his account is corroborated by contemporaneous written records, including file notes.
[15]Hall v R, above n 12, at [59].
Mr Batts emphasises that Mr Kan did not keep written instructions recording his advice to Mr Havea on the particular and fundamental question of whether to give evidence. While keeping a written record would have represented best practice, Mr Kan said that he did not do so because he repeatedly explained the shortcomings of the defence case to Mr Havea in the event he maintained his stance not to give evidence. There could be no room for any misunderstanding on this point he claimed. That explanation is consistent with his other evidence that the inability to advance the defence case in light of Mr Havea’s intransigence was “frustrating”.
We do not consider Mr Havea’s evidence on this point persuasive. To the contrary, his evidence explaining the delay in bringing his appeal is supportive of Mr Kan’s account. Mr Havea is clearly concerned with and reluctant to speak out in a way which would have the potential to implicate and antagonise gang associates. His refusal to give evidence which could implicate others and/or be perceived as a breach of the code of silence is an entirely plausible explanation for not being prepared to give evidence at his own trial.
This stance is supported by other aspects of Mr Havea’s own evidence. He accepted that he “could have said [he] was happy with [Mr Kan’s] closing speech generally”. If that is correct, it lies uncomfortably with Mr Havea’s insistence now that he believed he should have given evidence. We also find it difficult to reconcile Mr Havea’s observation that he did not “register” that in his closing address Mr Kan was suggesting that the person in the house was Panepasa rather than Mr Havea. A review of the closing address makes that claim all but impossible to accept. That it was Panepasa and not Mr Havea who was at Wayne Drive was a central and repeated theme of the defence address.
It follows that we accept Mr Kan’s evidence that he did properly advise Mr Havea on the decision to give or call evidence.
Did trial counsel fail to call witnesses that should have been called?
Mr Havea’s next ground of appeal is that trial counsel failed to follow instructions to call particular witnesses or call witnesses that should have been called. Those witnesses are:
(a)Panepasa Havea;
(b)Mr Vaifale; and
(c)Timothy McKinnel (an expert in phone analysis).
Mr Batts seeks leave to admit affidavit evidence on appeal from each of these witnesses. He argues that irrespective of whether this aspect of the appeal is viewed as trial counsel error in failing to call the witnesses or the assessment of the reasonableness of the verdicts in light of fresh evidence, either casts doubt on the safety of Mr Havea’s convictions. It was broadly submitted that trial counsel erred in that the defence advanced was an inadequate response to the central aspects of the Crown’s evidence against Mr Havea.
(a) Panepasa Havea
First, we will address whether trial counsel erred by failing to call Panepasa.
The crux of this issue is whether Mr Havea instructed Mr Kan not to call Panepasa as a witness. If he did, then failure to do so was not an error. No miscarriage of justice can result from following a client’s instructions not to call a witness.
This issue similarly turns upon our view of the evidence given on appeal. Mr Kan says that Mr Havea specifically instructed him not to call Panepasa as a witness. Mr Havea’s account differs.
Mr Havea’s account
Mr Havea claims that from the moment he was arrested, he knew Panepasa would be able to explain that he was not involved in the kidnapping. While he did not want Panepasa to get in trouble for him, he knew his lawyer needed to speak to him.
Mr Havea says that a few months after he met Mr Kan, he instructed him to speak to Panepasa. He says Mr Kan told him he would engage a private investigator to speak to him. When he asked for progress reports in subsequent meetings, he says that he would be told the investigator was working on it.
Mr Havea deposes that about three or four weeks before the trial, he asked his parents to ask Panepasa if he had been spoken to yet. They reported back that Panepasa had said he was still waiting to be contacted. About a week before the trial, Mr Havea passed Panepasa in the hallway in Mt Eden prison. When he asked whether he had been contacted, Panepasa said “nah”.
Mr Havea says that prior to trial he had two or three discussions with Mr Kan about potential defence witnesses. He says he suggested calling his ex-partner, his parents and Panepasa.
Throughout the trial Mr Kan asked Mr Havea questions. Mr Havea says he repeatedly told Mr Kan that he needed to ask Panepasa because he could provide answers to these questions.
About six weeks into the trial, Mr Kan sent Mr Yang to speak to Panepasa. Mr Yang took notes of the meeting, although Mr Havea says he was never shown them.
Despite that claim Mr Havea accepts that he signed a handwritten note confirming his instruction to Mr Kan not to call Panepasa as a witness. He claims he does not remember signing it. He says Mr Kan’s advice was not to call Panepasa as a witness. He also claims that Mr Kan did not explain the risks or negative consequences of calling Panepasa. Mr Havea says he did not read the instructions carefully at the time and trusted Mr Kan’s advice.
Mr Havea says that one day during the trial, Mr Yang came down to the cells to speak to him. He says Mr Yang told him Panepasa was not keen to give evidence and the defence planned to summons him. Mr Havea says he did not agree to summons Panepasa. He would not force him to give evidence and was surprised he had refused.
Mr Havea was worried that what Mr Yang wanted Panepasa to do was beyond what he instructed. He says he knew that if Panepasa was only required to speak about the phones, he would have been happy to give evidence. It would only have been if he was asked about other topics which might get others into trouble that he would have been concerned. He accepted as much during cross-examination on the appeal, when he said that he was worried Panepasa might be required to say something that would get him in trouble with the gangs.
Mr Kan’s account
The key difference in Mr Kan’s evidence is his account of the events prior to trial. Mr Kan denies Mr Havea’s claim that he instructed him to speak to Panepasa prior to trial. He also denies that he told Mr Havea he would send a private investigator to speak to Panepasa. He explained why. At that point Panepasa was a co-defendant. He had not yet pleaded guilty. It was not until after Panepasa entered guilty pleas on the last working day before trial that it became possible to call him as a witness.
Mr Kan says he sent Mr Yang to speak with Panepasa first. Mr Yang made a file note of his meeting with Panepasa. That note records that Panepasa told Mr Yang that he was not confident in his ability to give evidence because “it would make him look bad” as an associate of the Head Hunters. Mr Kan interpreted this to mean that he could get into trouble with other gang members if he was questioned on who was involved in the kidnapping, particularly if he gave evidence Mr Havea was not involved. Panepasa’s apparent reluctance is also recorded in correspondence Mr Kan sent to Panepasa’s then lawyer exploring whether he would be prepared to give evidence in support of his brother.
Mr Kan later met with Mr Havea. He says he advised Mr Havea that Panepasa could give evidence favourable to the defence case but was reluctant to be a witness. Mr Kan pointed out to Mr Havea that Panepasa’s reluctance was not a bar to him giving evidence because he was compellable. He could be summonsed. Mr Kan says Mr Havea refused to agree to compel Panepasa to give evidence having learned of his reluctance to do so.
Mr Kan claims that he emphasised the importance of calling this evidence. He said Panepasa’s evidence would be very useful for Mr Havea’s defence and that he strongly recommended that Panepasa be compelled to give evidence. He describes Mr Havea as being “adamant” that he did not want to compel Panepasa to give evidence.
At this point, Mr Kan determined it was necessary to record his advice and his client’s instructions. Mr Havea signed a handwritten instruction which reads:
I, Luigi Havea, instruct my lawyer, Michael Kan, the following:
(1) That my lawyer has given me the meeting notes recording the meeting my lawyer’s office had with my brother Panepasa Havea (Pasa).
(2)That I understand my brother Pasa may be called as a witness in support of my defence.
(3)That I understand [Pasa] may be able to confirm who had possession of cell number ending 831 and 919.
(4)That my brother Pasa may be able to confirm cell number ending 831 is/was used by many because it was a company cell phone and used by many people working for the company.
(5)That I understand my brother Pasa may be able to confirm the dispute Cambo Jack and Nui had in Nov/Dec 2015 and why was Nui kidnapped in Feb 2016.
(6)That I have considered my options including calling my brother Pasa in support of my defence case.
(7) That it is my decision and I instruct my lawyer not to call my brother Pasa as the defence witness for me.
(8)That I confirm I am aware of the risks and consequences of calling my brother Pasa and/or not calling my brother Pasa.
(9)That I confirm this is my decision. The decision is made with informed consent without any pressure from any person including my lawyer.
What were Mr Havea’s instructions?
The extent of the disagreement between Mr Havea and Mr Kan relates to the events prior to trial. Mr Havea says he told Mr Kan to speak to Panepasa. Mr Kan denies that. The evidence on that point is not particularly helpful to the question we are required to determine. Mr Havea’s instruction not to call Panepasa came after the trial had begun. It is the more proximate evidence of how that instruction came about which is critical.
On this point there is little disagreement between Mr Havea and Mr Kan. Both agree that Mr Yang spoke to Panepasa; that Mr Havea was told that Panepasa was reluctant to give evidence and the defence team would need to serve him with a summons; that Mr Havea refused to compel Panepasa; and that Mr Havea subsequently signed a written instruction not to call Panepasa as a witness.
Mr Havea’s decision not to call Panepasa was also likely driven by fear that his brother might inculpate or antagonise gang associates. For example, Mr Havea appears to have misapprehended that Panepasa could give exculpatory evidence about Mr Havea’s use of the relevant phones, but somehow not expose himself to cross‑examination about the involvement of the Ghost Unit or the Head Hunters. Once that was understood, the incentive not to call Panepasa would only have increased.
In all the circumstances we find it inconceivable that Mr Havea would have willingly signed a document which his lawyers prepared but which did not reflect the correct position. When considered against the other sources of evidence tending to support the accounts of Mr Havea’s three lawyers, we find it a good deal more likely that this note correctly reflects Mr Havea’s instructions not to call Panepasa.
It follows we are satisfied that Mr Havea instructed Mr Kan not to call Panepasa as a witness, having received comprehensive advice on that point. Given that finding, it is unnecessary to examine the substance of Panepasa’s evidence.[16] Mr Kan cannot have erred by following Mr Havea’s instructions.
[16]Leave to admit it is declined accordingly.
This ground of appeal must fail.
(b) Masi Vaifale
We next turn to Mr Batts’ contention that Mr Vaifale’s evidence on appeal renders Mr Havea’s conviction unsafe.
Mr Batts submitted that no effort was made by trial counsel to approach Mr Vaifale or his lawyer for the purposes of providing a statement. He submitted that trial counsel should have been aware of at least the possibility that Mr Vaifale could be a witness to Mr Havea’s involvement.
We do not consider that any such failure constitutes a reversible error on the part of Mr Kan. The first problem is that Mr Vaifale was Mr Havea’s co-defendant throughout the trial. As such he was not a compellable witness. There was no prospect of him giving evidence in support of Mr Havea’s case unless he elected to give evidence himself. To that extent, the evidence adduced on appeal of what he could have said is irrelevant.[17]
[17]Leave to admit it is declined on the basis it can have no effect on the safety of Mr Havea’s convictions.
In any event, Mr Havea’s evidence is that he does not remember telling Mr Kan that Mr Vaifale was one of the men he picked up from Mr Korhomklang’s address. Nor, it seems, was there any discussion about calling Mr Vaifale as a witness. As Mr Lillico points out, it is difficult to see how Mr Kan could have erred by failing to call a witness he could not call and did not know about.
There is nothing in this ground of appeal.
(c) Timothy McKinnel
Mr Havea’s final contention under this heading is that Mr McKinnel’s evidence should have been led at trial.
Mr Batts submitted that Mr McKinnel’s analysis of the phone data is fresh because it relies on information not originally disclosed to trial counsel. He submitted that trial counsel should have instructed an expert to perform an independent analysis of the sort now done. He submitted that the evidence could have made a material difference to the effectiveness of Mr Havea’s defence.
Mr McKinnel’s evidence on appeal consists of two affidavits. The thrust of his evidence is that his analysis of the data relating to the relevant phones illustrates that the phones were in fact used by different people at different times. He sets out four occasions on which the phones were being used a considerable distance apart.
We do not consider that Mr McKinnel’s evidence affects the safety of Mr Havea’s convictions.[18] While it further supports the defence case that other people might have used the relevant phones, that aspect of the case was put to the jury. The detective giving evidence on the point accepted during cross-examination that it was possible for multiple people to be using the phone numbers attributed to Mr Havea and that there were indications that Panepasa had been using one of the phones. Mr Kan addressed the detective’s evidence in closing and submitted that the relevant phone was a work phone which had been used by Panepasa. It is not a complex proposition for the jury to understand that different people might use a phone at different times and in different places, particularly having regard to the content of messages on the phone.
[18]Leave to admit the evidence is accordingly declined.
It follows that we are satisfied Mr McKinnel’s evidence would not have affected the jury’s assessment to any material extent. Nor would it have addressed the other aspects of the Crown case linking Mr Havea to the offending, such as Mr Ing’s identification evidence.
For those reasons, we do not consider that Mr McKinnel’s evidence reveals a risk of a miscarriage of justice.
(d) Conclusion
It follows it is our view that Mr Kan did not err by failing to follow instructions to call witnesses or by failing to call witnesses that otherwise should have been called.
Did trial counsel fail to advance the defence case as instructed?
Mr Havea’s final ground of appeal is that Mr Kan failed to advance the defence case as instructed.
Mr Batts emphasised the failure in closing to explain Mr Havea’s presence at Wayne Drive. He submitted that closing on the basis that Mr Havea was not present was directly contrary to Mr Havea’s briefs of evidence and approached misleading the Court.
Mr Havea’s evidence on this point is that he specifically told Mr Kan not to blame Panepasa for the kidnapping. He says he did not instruct Mr Kan to suggest that Panepasa was the person that Mr Ing had identified at Wayne Drive. While he accepts that he could have told Mr Kan that he was happy with the closing generally, he did not say he was happy with this aspect.
We do not consider that Mr Kan failed to advance the defence as instructed, for the reasons which follow.
First, we do not consider that Mr Kan was instructed or bound to close the defence case on the basis that Mr Havea was present at Wayne Drive. While that was what Mr Havea’s briefs of evidence said, he did not give evidence at trial. Had he done so, Mr Kan would have closed on the basis that Mr Havea’s evidence explained how he was present without being involved in the kidnapping. The lack of defence evidence meant that if Mr Kan were to close on the basis that Mr Havea was present at Wayne Drive, there was no evidence he could use to explain to the jury why Mr Havea was not involved. Advancing the defence case in that way would be necessarily fraught.
Mr Kan instead elected to essentially put the Crown to proof on this point. He submitted to the jury that the Crown could not establish that Mr Havea was present and that he was mistakenly identified by Mr Ing. In circumstances where Mr Havea had elected not to give or call evidence, the options for advancing an effective defence were limited. We consider that given those constraints there was nothing more Mr Kan could have done to advance the defence case.
Nor do we consider that the case as put by Mr Kan was contrary to Mr Havea’s instructions. While his evidence on appeal is that he did not want Panepasa to be blamed, he signed a written instruction which read as follows:
I, Luigi Havea, confirm the following
(1)That I confirm my lawyers have carried out my instructions in defending my charges before the jury.
(2)That I confirm I have no complaint in relation to the way my trial is run and the way my lawyers defend the charges on my behalf.
(3)That I confirm I am satisfied my defence has been properly put to the jury for the jury to consider the verdicts.
Mr Havea’s claim that Mr Kan advanced the defence contrary to his instructions is in stark contrast to Mr Kan’s evidence and the contemporaneous documentary record. Our view is that the closing must have complied with his instructions.
This ground of appeal must fail.
Result
The application for an extension of time to appeal is granted.
The applications for leave to adduce fresh evidence are declined.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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