K v Police
[2019] NZHC 1258
•5 June 2019
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2018-485-80
[2019] NZHC 1258
BETWEEN K
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 May 2019 Appearances:
S A Thistoll for Appellant
A R T Garrick for Respondent
Judgment:
5 June 2019
JUDGMENT OF GRICE J
Introduction
[1] Mr K has been charged with three counts of breaching a protection order by engaging in behaviour which amounts to psychological abuse of the protected person, his ex-partner.1 At his trial in the District Court Mr K did not dispute that he was present on the three occasions giving rise to the charges, but contended that his mere presence in the vicinity of the ex-partner could not amount to psychological abuse in the circumstances.
[2] At the trial on 24 May 2018 in the Porirua District Court counsel appeared for Mr K. The Judge delivered a reserved judgment finding Mr K the guilty on 13 August 2018.2 Mr K was convicted on 5 November 2018 and sentenced to community work, supervision and to come up for sentencing if called upon.
1 Domestic Violence Act 1995, ss 19(1)(a) and 49(1)(a).
2 Police v [K] [2018] NZDC 16092.
K v NEW ZEALAND POLICE [2019] NZHC 1258 [5 June 2019]
[3] Mr K appeals against his convictions on the ground he was denied an effective defence due to trial counsel error on the basis:
(a)his election not to give evidence was not a fully informed decision; and
(b)trial counsel failed to cross-examine a witness (the complainant) on all matters relevant to the available positive defence of “reasonable excuse”.
[4]Both Mr K and counsel at trial filed affidavits for the purposes of the appeal.
Summary of offending
[5] Mr K and his ex-partner met when they worked for the same employer in Paraparaumu. They commenced a relationship in 2014. This continued on-and-off for approximately three years. Incidents during their relationship led to the ex-partner being granted a protection order against Mr K on 7 September 2015. That order became final on 5 December 2015.3 Their relationship then resumed for about a year during 2016, but they separated again in February 2017.
[6] The first charge arose in circumstances where Mr K’s ex-partner was on her bike working on the morning of 3 February 2017. She turned into a street and saw Mr K driving past in his car. They saw each other, made eye contact and continued on their separate ways. However, a couple of minutes later, Mr K’s car drove past her again. She recognised the car the second time by its number plate. She did not look up or make eye contact with the driver.
[7] The second charge arose in the following week, on 9 February 2017. His ex- partner had just been to the airport to pick up her friend and on the way back they decided to stop for a glass of wine at a bar at the beach. They were sitting on an upstairs deck when his ex-partner noticed Mr K’s car drive past into the bar’s front carpark area and leave. A brief time later she and her friend saw it return. The car did
3 His ex-partner gave evidence that the incidents leading to her seeking the order included Mr K breaking into her residence, stealing things, being physically and verbally abusive and stalking her. On one occasion, Mr K had been arrested for being seen on a security camera sneaking up his ex-partner’s driveway.
a slow u-turn and drove up behind the complainant’s distinctive car. The car then drove slowly and parked about 10 to 15 metres away. His ex-partner was shocked, went inside, called the police and informed the bar manager of her fear that Mr K might come inside. She and her friend took photos and a video of the incident. Her friend said that she saw Mr K get out of the car, walk in the general direction of the stairs leading up to the bar. Mr K saw the friend taking photographs and then he changed direction to head to a nearby public toilet instead. He then returned to his car a short time later and left.
[8] The third incident occurred the following day on 10 February 2017. The ex- partner was working on her bike and as she turned into a street, she saw Mr K walking in the same direction down the street following her work route. She was so affected by this that she began to shake and decided she could not continue her work. She rang the police and was advised to follow Mr K at a safe distance and wait for police to come. Mr K was arrested and exercised his right to not make any statements to the Police about the charge.
[9] The ex-partner says that she returned later in the day to the vicinity that she had come across Mr K on that third occasion. She identified his car parked in a nearby street. She alleged that he had deliberately driven there knowing that it would be on her job path and had then walked to the road to manufacture the contact with her.
District Court proceedings
[10] At trial, in relation to the first charge, the ex-partner accepted that Mr K could not have known that she was on that particular work bike route that day. She accepted that she had been covering for another worker who was unable to attend work that day. She accepted that Mr K might well have had good reason for being on that road at the time as his parents lived in that area. However, she said that she believed Mr K had gone out of his way to drive past her again.
[11] In relation to the third incident, the ex-partner accepted that Mr K did not know whether she would have been rostered on to that route that day. However, she alleged that he knew it was one of her common routes and that it was a road on which her best
friend lived. The complainant alleged that Mr K had parked close by and loitered around there in order to be in the same vicinity as her.
[12] The Judge began his consideration of the case by setting out some of the relevant law governing charges for breaching protection orders. His Honour observed that all that the prosecution needed to prove was a contravention of the order, that the contravention amounted to psychological abuse and Mr K knew of the order.4 There was no requirement to show Mr K intended to psychologically abuse his ex-partner through his contraventions. Once the prosecution put its case before the court, the defendant had had the onus of showing, on the balance of probabilities, a reasonable excuse for contravening the order in the circumstances. The Judge acknowledged that while the defendant may be able to discharge this onus solely through concessions gained in cross-examination of prosecution witnesses, this would be unusual in practice.5
[13] In this case, the Judge considered that there had been insufficient concessions made by the prosecution witnesses to give rise to an evidential basis for a submission that Mr K had a reasonable excuse to contravene the order on each charge. Mr K had elected not to give evidence nor call any other evidence. Therefore, the Judge rejected the possibility that Mr K had any reasonable excuse for contravening the protection orders. This meant that if, on the evidence, Mr K’s behaviour on each occasion could amount to psychological abuse of the ex-partner in the circumstances of case then the charges will have been proved.6
[14] The Judge then set out the law governing what behaviour would constitute psychological abuse.7 He quoted extensively from Gendall J’s judgment in M v Police.8 The crux of that dicta is that the question of whether a certain behaviour is psychologically abusive is an objective question to be ascertained in the context of all the surrounding circumstances as they relate to the defendant and the protected person, including the history of their relationship. The contravening behaviour did not
4 Police v [K], above n 1, at [14].
5 At [15].
6 At [16].
7 At [18]–[22].
8 M v Police [2007] NZFLR 160.
necessarily need to fit into one of the categories in s 3(2)(c) of the Domestic Violence Act definitions of psychological abuse.9 He referred to Court of Appeal authority that there is no requirement for psychological distress to actually result from the behaviour.10
[15] Turning to the facts of the case, the Judge considered the “specifically- informed context” of the relationship between Mr K and his ex-partner was one “exemplified…to a large extent of insidious and intrusive invasion into [his ex- partner’s] life and what might be called her ‘peace of mind comfort zone’”.11 That meant it was easier to draw an adverse inference that psychological abuse had occurred even though if viewed completely objectively Mr K’s behaviour might be innocuous. The prosecution alleged that Mr K’s contravening behaviour was the deliberate coming into contact with his ex-partner, as opposed to merely accidental, opportunistic or inadvertent contact.12 The Judge considered that this, without any thing further, might well amount to psychological abuse in certain circumstances because it communicates to the protected person that she cannot avoid him and the protection order will not fully protect her.13
[16] Applying these principles to the evidence, the Judge was satisfied beyond reasonable doubt that each of the three occasions in isolation amounted to an engineering of deliberate contact with the ex-partner by Mr K.14 On the first charge, it was inferred from Mr K driving past her for a second time almost immediately after passing her on the street.15 On the second charge, it was Mr K deliberately returning to the car park to make her aware that he was present in her vicinity.16 On the third charge, it was on the basis of all the evidence, particularly the location of his car ascertained after his arrest, which indicated he had engineered the opportunity to come across her.17
9 Police v [K], above n 1, at [23]–[25].
10 SN v MN [2017] NZCA 289, [2017] 3 NZLR 448 at [39]-[41] and Cooper v R [2018] NZCA 159.
11 Police v [K], above n 1, at [26]–[27].
12 At [28].
13 At [28].
14 At [30].
15 At [31].
16 At [32].
17 At [33].
[17] The Judge considered the conclusions mutually reinforced each other, particularly in light of the fact they all happened within the same week and also in the context of the background of the relationship which had led to the protection order in the first place.18 The Judge found there was a deliberate pattern of behaviour which, in isolation and together, amounted to psychological abuse. While not an element of the charge, the Judge considered the behaviour had the very effect which the protection order had been designed to protect against.19
Standard of appeal
[18] Section 232(2)(c) of the Criminal Procedure Act 2011 (CPA) provides that the High Court must allow an appeal if the Court is satisfied that a “miscarriage of justice has occurred for any reason”. A “miscarriage of justice” is defined in s 232(4) as “any error, irregularity, or occurrence in or in relation to or affecting the trial that [either] has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity”. As demonstrated by the legislation, and reiterated by the Supreme Court, not every error or irregularity causes a miscarriage of justice. Importantly, “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.20
[19] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.21 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict is actually unsafe” but that there is a real possibility the verdict would be unsafe.22
[20] The leading case on appeals against convictions premised on trial counsel error is the Supreme Court decision in Sungsuwan v R.23 The key passage oft-quoted from the case says:
18 At [34].
19 At [35].
20 Matenga v R [2009] NZSC 18 at [30].
21 R v Sungsuwan [2006] NZSC 57, [2006] 1 NZLR 730 at [110].
22 At [110].
23 R v Sungsuwan, above n 21.
[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 assessing whether there was an error, appeal courts remain alert to the practical realities facing defence counsel before and during a criminal trial and be cognisant of the natural tendency of some convicted persons to point the finger if things do not go their way.24 The Court of Appeal has cautioned that simply because hindsight reflection points to a better course of action this does not necessarily mean that the original decision was an error, nor that there had been a miscarriage of justice.25
[22] In Hall v R the Court of Appeal drew a distinction between trial counsel error on fundamental matters that would almost inevitably result in an unfair trial and so a miscarriage, and trial counsel errors on matters less fundamental that would not always result in a miscarriage.26 The Court noted:27
… it is helpful to identify the three fundamental decisions on which trial counsel’s failure to follow specific instructions will generally give rise to a miscarriage. The fundamental decisions are those relating to plea, electing whether to give evidence and to advance a defence based on the accused person’s version of events.
[23] Where errors in making “less fundamental trial decisions” are alleged, a miscarriage of justice will only occur if the decision was not one a competent lawyer would have made and if what actually happened may have affected the outcome.28 It is not a matter of “whether counsel could have reached a different decision or conducted the trial in a different way”.29
24 See, for example: R v Scurrah CA159/06, 12 September 2006 at [17]–[20]; R v Pointon [1985] 1 NZLR 109 (CA) at 114; and Simon France (ed) Adams on Criminal Law – Criminal Procedure (online looseleaf ed, Thompson Reuters) at [CPA232.11(1)].
25 McGeachin v R [2015] NZCA 558 at [6].
26 Hall v R [2015] NZCA 403 at [61]–[65].
27 At [65] (emphasis added).
28 Hall v R, above n 26, at [77].
29 S (CA88/2014) v R [2014] NZSC 583 at [16] citing R v Sungsuwan, above n 21, at [66].
[24] Here, the errors in relation to the election to give evidence are about whether Mr K was fully informed, rather than a failure to follow instructions. In Tarring v R, the Court of Appeal noted:30
The election whether to give evidence is a decision for the client but it must be an informed decision and it is for counsel to ensure the client has the necessary information, conveyed in an appropriate and timely way, to make the decision.
[25] Although there is no appellate guidance on what exactly is required by trial counsel to satisfy the responsibility of fully informing their client, the High Court recently observed:31
[63] The fact that a defendant's informed choice not to give evidence is revealed by hindsight to have been the wrong choice will not of itself amount to a miscarriage of justice. Similarly, a defendant who knows of the right to give evidence and freely adopts firmly expressed advice from counsel not to testify is unlikely to be able to argue successfully that a miscarriage has occurred. The threshold is even higher where counsel refrains from giving affirmative advice.
Grounds of appeal
[26] First, Mr K alleges that trial counsel erred by failing to advise him of the benefits or otherwise of electing to give evidence to raise the positive defence of ‘reasonable excuse’. Relatedly, counsel failed to specifically inform Mr K of the ‘reasonable excuse’ defence. It is submitted that this prevented Mr K from making a properly informed decision on whether to give evidence and it deprived him of the opportunity to advance a positive defence based on his account of what happened.
[27] Secondly, Mr K says trial counsel erred by failing to cross-examine the prosecution witnesses on all matters that were a part of Mr K’s version of events and which might have been relevant to a reasonable excuse argument. Specifically, the failures to cross examine were:
(a)In relation to the first charge. The ex-partner’s evidence about making eye contact with Mr K. There was inconsistency in her statements as
30 Tarring v R [2016] NZCA 425 at [26].
31 Kumar v Police [2018] NZHC 3202 (footnotes omitted).
to whether she made eye contact with Mr K on the first or second time she saw his vehicle.
(b)In relation to the second charge. The ex-partner’s evidence on when she and her friend noticed Mr K’s car, if they saw the number plate, and who exactly saw the car. Further there was no cross-examination about the complainant having changed cars after the relationship was over.
(c)In relation to the third charge. Mr K did not know the ex-partner’s job route. This point was in addition to the complainant’s concession that Mr K could not have known it was her route that day. It was also not put to the ex-partner that there were limited options for Mr K to remove himself from the encounter due to the layout of the streets and that he had a severe back injury which meant he could not promptly leave.
Discussion
Trial counsel error in Mr K electing not to give evidence
[28] As the respondent set out in her submissions, the elements to be established for the charge facing Mr K were: knowledge of the protection order; an intention to engage in conduct; and the conduct objectively amounting to psychological abuse. The first element was not in dispute at trial. The third one was the subject of extensive legal and factual submission. The Judge resolved it in the following way:32
[28] Each of the charges faced by Mr K does not specify a form of psychological abuse which directly falls within the categories specified in the statutory definition but essentially the prosecution alleges that there was deliberate coming into contact as opposed to merely accidental, opportunistic and inadvertent contact. I accept that in certain circumstances (mere) deliberate contact, without more, may amount to psychological abuse; it conveys the unspoken, but no less effective, message from a male defendant to a female protected person that if he chooses to engineer contact she cannot avoid him and that if he wants to put himself in public places where she is, the order will not protect her from that.
[29]The Judge’s approach is not contested on appeal.
32 Police v [K], above n 1.
[30] The alleged contraventions of the protection order were that contact, without more, amounted to psychological abuse, therefore the second element of the charge was crucial. In order to prove it, the prosecution had to show the defendant’s conduct was intentional, in the sense it was deliberate rather than accidental and that he had knowledge of the essential matters at the time of that conduct. That included his knowledge of the complainant’s presence or her likely presence at each of the locations where the contravening encounters occurred.
[31] On appeal both Mr K and the police noted that the primary defence strategy was to show Mr K was innocently present in each of the three places on the occasions that he came across his ex-partner.
[32] There is obvious overlap between the “reasonable excuse” defence and a defence strategy based on requiring the prosecution to prove that the defendant had deliberately engineered contact, rather than his being innocently in the vicinity.
[33] It is clear that trial counsel did advise Mr K on a defence based on Mr K being innocently in the vicinity and so put the prosecution to proof. As part of that strategy, in relation to the first incident trial counsel put to the complainant that Mr K’s parents were in the vicinity and so he could have been visiting them there. The complainant agreed that might be the case but she pointed out that Mr K’s return was the point that caused her real concern. A number of other matters that supported a “reasonable excuse” defence but also went to the question of intent were put to the complainant and I refer to those in more detail below.
[34] I do not consider that it is material in this case that trial counsel may not have spelled out the fact that an affirmative defence of reasonable excuse put a burden on Mr K to establish. The general defence strategy was based on Mr K’s presence being coincidental and therefore he had no requisite intent. This strategy was fully discussed with Mr K. Trial counsel carried out Mr K’s instructions by following that strategy and undertook robust cross-examination of the complainant on that basis. This was designed to illustrate the coincidence of Mr K being in the vicinity for each incident.
[35] I do not consider that counsel needed to explain the technical details, including the burden of proof to establish reasonable excuse, in the circumstances.
[36] This is not a case where trial counsel failed to follow the defendant’s instruction on a fundamental trial decision. Trial counsel followed Mr K’s instructions and put forward the defence based on Mr K’s version of events. He also gave Mr K sufficient information to enable Mr K to elect not to give evidence and Mr K was aware of the risks of not giving evidence.
[37] Both Mr K and trial counsel provided affidavits for use on appeal. There is no great difference between the evidence of trial counsel and Mr K as to what happened. Trial counsel said:
(a)He and his staff solicitor spent considerable time taking instructions from Mr K before the hearing.
(b)Mr K impressed him as articulate, able and confident, and a person not “easily swayed or persuaded to take an approach contrary to his view”.
(c)Mr K was confident in his defence and, until the discussion after the evidence of the prosecution, had intended to give evidence, although he was always aware there was a real risk that he could be unsuccessful at defending the charges and might be convicted.
(d)Trial counsel went to lengths to obtain information to use for the defence including obtaining an order for disclosure of Vodafone records which provided evidence as incoming text messages and phone calls from the complainant’s phone.
(e)Mr K had a support person with him throughout the Court hearing and, importantly, during the discussions between trial counsel and Mr K that at the end of the prosecution evidence. These discussions took place in a foyer outside the courtroom.
(f)The discussion at that stage was robust but it was made clear the decision was always up to Mr K as to whether he gave evidence.
(g)Trial counsel’s concern and the issue discussed with Mr K in the foyer was whether or not Mr K could withstand cross-examination and not get rattled with giving his evidence. Trial counsel did not attempt to “force” Mr K not to give evidence. Trial counsel said he was always alive to the fact that it is ultimately the defendant’s call as to whether or not he gave evidence and trial counsel could only advise on the prospects and possible result of the giving of evidence.
(h)Trial counsel having spent some time with Mr K, had observed that Mr K would often get easily frustrated or angry. Trial counsel was therefore concerned Mr K would not be able to withstand cross- examination by the prosecution and might jeopardise the defence case.
(i)Mr K agreed that he was not confident in himself as a witness.
(j)Trial counsel relayed his concern to Mr K about how the evidence could negatively affect the Judge’s measure of Mr K’s credibility and might jeopardise the defence case.
(k)Trial counsel was of the view that the police case was circumstantial and cross-examination of prosecution witnesses would be enough to establish a defence of “innocent coincidence” and “reasonable excuse” explaining why Mr K was in the vicinity.
(l)Trial counsel’s strategy was that the prosecution was being put to proof to prove beyond reasonable doubt the elements of the charge. He was aware that the onus was on the defence to prove a “reasonable excuse” for breaching protection order. He did not think he discussed that in those terms with Mr K.
(m)Trial counsel says that perhaps if more emphasis had been made to Mr K that he could benefit his case by giving evidence (as to the reasons he was found in a particular place) and an explanation of the “reasonable excuse” provision Mr K may well have elected to give evidence.
(n)Trial counsel does not recall specifically discussing the “reasonable excuse” issue during the court foyer discussion. It was a discussion focussed on whether Mr K should give evidence. Trial counsel advised Mr K of the possible consequences if he did so or if he did not. Counsel suggested Mr K could undermine the favourable evidence elicited under cross-examination of the prosecution. It was however Mr K’s decision not to give evidence.
[38] Mr K’s affidavit evidence is not materially different in relevant respects to that of trial counsel, although the emphasis is slightly different. Mr K says:
(a)Trial counsel was very forceful, using the phrase that Mr K could “fuck up” his own case in the course of the discussion in the foyer.
(b)Mr K was fatigued due to chronic back pain and trying to function on reduced pain medication in order to concentrate.
(c)Mr K sat beside trial counsel during the trial and was able to pass notes to him, but he can best express himself by speaking as he is dyslexic. Mr K said he was asked to be quiet on some occasions so trial counsel could hear the witness.
(d)Trial counsel was very forceful in his view and Mr K felt he had to accept his advice and so said he would not give evidence.
[39]Mr K now says:
(a)He should have been told of the affirmative defence of “reasonable excuse” and the fact that it placed an onus on him.
(b)He was tired and in pain and therefore susceptible to trial counsel’s forceful advice not to give evidence.
[40] As outlined above, I do not consider the fact that trial counsel may not have gone into exact technical detail concerning the burden of proof to establish the defence of reasonable excuse, amounts to an error in the circumstances. The defence strategy had been extensively discussed with Mr K. Trial counsel pursued that strategy and followed his client’s instructions. At court he gave tactical advice to Mr K that by giving evidence he may jeopardise the concessions that trial counsel felt he had already obtained in his cross-examination of the police witnesses. Mr K was in a position to make an informed decision about giving evidence.
[41] I do not attach much weight to Mr K’s submissions that he was particularly susceptible to being persuaded by trial counsel. Mr K had sat through the hearing and heard the concessions in cross-examination himself. In addition, he had become well acquainted with trial counsel during the time they had spent discussing the defence, both before and during the trial. In addition he had a support person with him during the trial and the relevant conversation with trial counsel. That support person did not provide an affidavit in this appeal. There is no evidence to suggest that trial counsel was more than forthright. He gave Mr K robust advice, based on counsel’s experience and observation of how the trial was going. This was an appropriate approach, particularly given trial counsel’s observations on Mr K’s possible reactions in the cross-examination.
[42] Finally, there is no evidence to suggest that Mr K suffered from any disability that might have rendered him particularly vulnerable in the sense that he was not able to give proper instructions or understand the advice he was given by counsel. It was up to Mr K whether or not he accepted the advice. He accepted it and made the decision not to give evidence in light of that advice.
[43] Mr K does not suggest that trial counsel made any errors in giving advice, other than his complaint that he had not received an explanation about the burden of proof for the reasonable excuse defence.
[44] I do not consider there was any counsel error in trial counsel’s advice not to give evidence. A review of the notes of evidence shows that trial counsel obtained some reasonably significant concessions in cross-examination from the complainant. Unfortunately for Mr K, the Judge did not consider the ground made in cross- examination was sufficient to prevent the offences being proved.
[45] It is with the benefit of hindsight that Mr K, having been convicted and in light of the Judge’s comment on his failure to give evidence, now makes the allegation that he was denied an effective defence due to trial counsel error or incompetence.
[46] The tactical decisions made by trial counsel at the time were open to him. They were those that a competent lawyer could have made in the circumstances. Counsel was exercising his best judgment in the circumstances at the time. Simply because in hindsight the decision did not produce a favourable outcome does not mean there has been a miscarriage of justice.33
Cross-examination
[47] I now turn to the issue of whether there was counsel error in the cross- examination. At the outset I note counsel must be entitled to exercise some judgment on matters such as their approach to cross-examination.34 This is necessary given the need to make instant decisions about what questions to ask and, importantly, what not to ask based on the answers already obtained.
[48] Mr K points to cross-examination errors in relation to all three incidents. I deal with them in turn.
First incident
[49] Mr K says that the complainant should have been cross-examined on the fact that his parents lived in the area and he had been visiting them and forgotten his cellphone which was the reason he turned around and went back. Trial counsel’s
33 Hall v R, above n 26 at [11].
34 At [75].
notes, which were handed up by consent in the course of the argument on appeal, indicate that Mr K may have mentioned this in his instructions to trial counsel.
[50] However, the notes of evidence indicate that trial counsel put to the complainant that Mr K did not wave or try to get her attention or even look at her on his return to the vicinity. The complainant responded that she did not pay attention to what he was doing.
[51] Having gained those concessions and made those points it was well within trial counsel’s tactical discretion to decide not to push the point and risk further elaboration and denials so destroying the concessions already made.
[52] I do not consider there was any counsel error displayed in cross-examination on that point.
Second incident – waterfront bar incident
[53] Mr K complains that there were some discrepancies between the original statement made by the complainant and what she said at trial.
[54] A review of the statement and her evidence at trial indicates that in the original statement she said her friend noticed the car, but at trial she said both she and her friend noticed Mr K’s car. That is not inconsistent. The complainant in evidence also conceded that in her statement she at least implied that she had seen the whole incident, whereas she agreed she had gone inside to alert the bar manager and call the police while her friend continued to take pictures of Mr K’s car driving into the carpark. Trial counsel obtained concessions that her evidence and statement were inconsistent.
[55] Mr K further says that the complainant had changed her car from a white car to a black car after the relationship ended. Therefore, Mr K was not familiar with her new vehicle. This was not put directly to the complainant by trial counsel. However, in relation to the first incident, the complainant had earlier in her evidence said that she had left her car on the side of the road when she did her mail run. She commented that, because of things that “had happened” to her car, it made her “very scared” to leave her car alone. The complainant says when she had parked her car on one
occasion Mr K had parked on the other side of the road and tried to approach her. She said therefore he knew where her car was usually parked.
[56] These comments by the complainant indicate that she was of the view that Mr K did know what car she drove after the end of the relationship. Her comments also raise the possibility that if she had been cross-examined about her car, the complainant might provide further details about her suspicions concerning the incidents involving her car and Mr K’s possible involvement. He may well have considered it unwise to cross-examine the complainant on the change of car. The decision whether to cross-examine directly on the point was well within trial counsel’s discretion.
In my view, trial counsel made no material errors in that cross-examination.
Third incident
[58] In relation to the third incident on 10 February, Mr K says that trial counsel should have asked the complainant whether she was aware that Mr K was doing a real estate course. This would have provided an explanation as to why Mr K was on foot in the vicinity. He says he was looking at what houses were on the market in the area which was on a floodplain.
[59] In addition, Mr K says counsel should have put to the complainant that Mr K did not know the complainant’s work route in that particular area.
[60] A further issue raised by Mr K about the cross-examination was it was not put to the complainant that as Mr K was on foot he could not run from the vicinity due to his bad back.
[61] However, in cross-examination the complainant was challenged on a number of matters premised on Mr K being innocently in the vicinity and his trying to move out of her way including:
(a)the appellant was entitled to walk in the area in question on that day;
(b)the complainant in fact was following Mr K (not vice versa);
(c)the complainant continued walking as normal when she saw Mr K and there was only one way back to his car.
[62] The Court also had questioned the complainant on Mr K’s knowledge of her likely presence in the vicinity. The complainant accepted that Mr K did not know her roster and could not know what route she was working that day.
[63] In my view, the cross-examination was competent and little would have been gained by a question concerning Mr K’s bad back or his real estate course. They were the types of matters that counsel would have to make instant calls about whether or not to put based on an assessment of whether any gains could be made or whether the answers might damage the defence.
[64] In summary, the cross-examination was competent, it was designed to elicit responses in support of Mr K’s version of events and there was nothing that was omitted that would amount to a material error. In my view, the careful cross- examination obtained a number of concessions, which may have been jeopardised if the topics that Mr K says should have been pursued were in fact put to the complainant.
[65] I do not consider that the alleged errors in trial counsel’s cross-examination are in fact errors and in any event even if they were are not sufficient to raise a real risk that a miscarriage of justice occurred. This finding takes account of the heightened significance of the cross-examination in the context of the defence strategy and the advice accepted by Mr K that he should not give evidence.
Conclusion
[66] The trial counsel errors alleged did not give rise to a real risk of a miscarriage of justice.
[67]The appeal is dismissed.
Grice J
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