M (SC 111/2024) AND THE KING
[2025] NZSC 13
•7 March 2025
| NOTE: DISTRICT COURT ORDER IN [2022] NZDC 23803 PROHIBITING PUBLICATION OF RELATIONSHIP BETWEEN APPLICANT AND COMPLAINANT REMAINS IN FORCE. |
| NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE |
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 111/2024 [2025] NZSC 13 |
| BETWEEN | M (SC 111/2024) |
| AND | THE KING |
| Court: | Ellen France, Williams and Kós JJ |
Counsel: | J E L Carruthers for Applicant |
Judgment: | 7 March 2025 |
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
____________________________________________________________________
REASONS
Introduction
The applicant was convicted after a jury trial on charges of historic sexual offending against a child. He challenged his convictions on the basis that his election not to give evidence was uninformed. The Court of Appeal dismissed his appeal.[1] He has filed an application for leave to appeal to this Court.
Background
[1]M (CA722/2022) v R [2024] NZCA 431 (Mallon, Lang and Moore JJ) [CA judgment].
The offending was alleged to have occurred over two periods. The first offence was a single incident when the complainant was aged between five and six years old and the applicant between 15 and 17 years old. This gave rise to a charge of sexual violation by unlawful sexual connection.[2] The second period of time spanned 1 July and 31 December 2005, when the complainant was between eight and nine years old. Various incidents over that period led to four further charges of sexual violation by unlawful sexual connection and one charge of sexual conduct with a child under the age of 12.[3]
[2]Crimes Act 1961, ss 128(1)(b) and 128B.
[3]Crimes Act, s 132(3).
The matter went to trial in 2022. Prior to that, in May 2020, the applicant had undertaken a video interview with police, who put the allegations made by the complainant to him. The video interview was not played at trial. In addition to the complainant, the Crown called several other witnesses. One of these witnesses gave recent complaint evidence. Another of the witnesses gave evidence about, amongst other matters, having seen the applicant on top of the complainant during one of the incidents and about him taking her into the bushes during another. The applicant’s defence, that the allegations were fabricated, was advanced through cross-examination of the complainant and of other witnesses.
Following conviction, the applicant was sentenced to a term of four and a half years’ imprisonment.[4]
The proposed appeal
[4]R v [M] [2022] NZDC 23803 (Judge Robinson).
The proposed appeal would focus on whether the Court of Appeal was right to reject the applicant’s claim his decision not to give evidence was not an informed one. He wishes to argue that the Court of Appeal erred in its analysis and that the decision in his case is difficult to reconcile with other recent decisions of that Court. In support of the submission of a miscarriage of justice, the applicant’s case can be summarised as raising the following broad themes: trial counsel in discussing the election did not focus on the possible advantages of doing so; there was evidence he could have given at trial; there was a more positive aspect to the police video evidence than counsel, or the Court of Appeal, apprehended; trial counsel did not properly advise the applicant at the end of the Crown case as to the state of the defence; and, overall, counsel had fallen short of ensuring a properly informed election, particularly where the applicant’s initial view that he did not wish to call evidence was formed without a written brief having been prepared.
Our assessment
There is no real challenge to the settled principles about the need for the decision about whether to give evidence to be an informed one and nor as to the desirability of a written brief being prepared as part of ensuring the election is an informed decision.[5] Rather, the proposed appeal would turn on the application of those principles to the facts of this case. Further, the different outcome reached in the other cases relied on by the applicant[6] are explicable by factual differences. No question of general or public importance accordingly arises.[7]
[5]See Hall v R [2015] NZCA 403, [2018] 2 NZLR 26; Weston v R [2019] NZCA 541; and see Tihema v R [2024] NZSC 112, [2024] 1 NZLR 473.
[6]Counsel cite a number of cases including Broomhall v R [2021] NZCA 617; P (CA181/2020) v R [2022] NZCA 601; Weston, above n 5; Tarring v R [2016] NZCA 452; and W (CA556/2023) v R [2024] NZCA 455.
[7]Senior Courts Act 2016, s 74(2)(a).
In terms of the miscarriage of justice ground, the proposed appeal would reprise the arguments addressed by the Court of Appeal, having heard evidence from the applicant and from trial counsel.
On the first of these matters, while critical of the absence of proper record keeping by trial counsel, the Court was satisfied that the applicant “knew what evidence he could have given had he elected to do so”.[8] Further, while accepting trial counsel’s focus had been “more on the risks” than the “potential benefits” of giving evidence, based on trial counsel’s evidence, the Court found that the advice given was sufficient.[9]
[8]CA judgment, above n 1, at [31].
[9]At [33].
Next, in terms of the evidence the applicant says he could have given at trial, as the respondent submits, the two most important aspects are:[10]
15.1in relation to the first occasion of offending, [the applicant’s] assertion that he and the complainant never crossed paths at [the event at which the first period of offending occurred]; and
15.2in relation to the second period of offending, evidence about a shoulder injury that he suffered in a car accident.
[10]Footnotes omitted.
On the first point, the evidence of trial counsel was that he asked the applicant to contact his father, who had attended the event in question, about the opportunity for offending at the first occasion. The applicant did not wish to approach his father.
This meant there was no corroborating evidence to support this.In terms of the evidence relating to the shoulder injury, the Court referred to trial counsel’s “reasonable” assessment, based on medical records, that the “shoulder evidence was not particularly compelling” being, at best, equivocal.[11] Appellate counsel acknowledged the limitations of the records. The Court of Appeal noted that trial counsel had explained to the applicant that propositions put to witnesses only became evidence if accepted. The applicant accepted trial counsel had told him that even if the witnesses for the Crown disagreed there was a shoulder injury, counsel’s advice was that this did not warrant him giving evidence. Trial counsel’s evidence was that he spoke to the applicant each day after the close of evidence and checked whether he had any questions. In the circumstances, although the Court accepted that the applicant’s attention should have been drawn to the unsuccessful nature of defence cross‑examination on this topic, the Court did not consider the failure to do so meant the election was uninformed.
[11]CA judgment, above n 1, at [52].
We turn then to the challenge based on the emphasis placed by trial counsel on the contents of the applicant’s police video interview. Although the prosecutor had chosen not to play the video interview, trial counsel was concerned that if the applicant gave evidence, he might be cross‑examined on that interview in which he often said he could not remember, rather than outright denying the allegations being put to him. The Court accepted trial counsel’s evidence that he undertook a mock cross‑examination to explain the risks of such a cross-examination to the applicant.
The applicant says that on a more careful reading of the interview he did in fact deny the allegations more than once. The Court of Appeal on this noted that:[12]
The reality is that much of M’s [the applicant’s] evidence was … simply that he did not remember. Indeed, we agree with Mr Westgate [trial counsel] that this was the overall impression one gets from his EVI [evidential video interview], …
[46] In those circumstances, it was not wrong for Mr Westgate to advise M that the Crown would likely cross‑examine him on the difference between his lack of memory in his EVI and any denials he would make in the witness box in order to undermine his credibility. That advice was sound given this case ultimately came down to a credibility contest and whether the jury accepted [the complainant’s] evidence to the criminal standard. M’s election not to give evidence was not uninformed because of it.
[12]At [45]–[46].
Finally, looking at the matter overall, the Court of Appeal found the applicant “elected not to give evidence based on tactical trial strategy advice that was fairly available”.[13] The election was an informed one.
[13]At [56].
In dismissing the appeal, the Court of Appeal carefully considered the evidence before it, and made an assessment of that evidence and as to the implications of it in the context of the trial. Nothing raised by the applicant gives rise to the appearance of a miscarriage of justice arising out of that assessment.[14] The criteria for leave to appeal are not met.
Result
[14]Senior Courts Act, s 74(1)(b).
The application for leave to appeal is dismissed.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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