Malofie v The Queen
[2014] NZCA 419
•27 August 2014 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA661/2013 [2014] NZCA 419 |
| BETWEEN | JOE IOELU MALOFIE |
| AND | THE QUEEN |
| Hearing: | 23 July 2014 |
Court: | Stevens, Lang and Clifford JJ |
Counsel: | R M Gould for Appellant |
Judgment: | 27 August 2014 at 3.00 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
Mr Malofie was convicted by a jury in the Wellington District Court on a charge of sexual violation by rape. He appeals against conviction on the ground that he has been the victim of a miscarriage of justice caused by errors made by his trial counsel.
Background
The charge was laid as a result of an incident that occurred at around 6 am on the morning of 16 September 2011. The Crown alleged that Mr Malofie had raped the complainant, a woman he had not met prior to that date, in toilets situated on Manners Street in central Wellington.
The complainant gave the bulk of her evidence-in-chief at trial by way of a videotaped interview that the police undertook with her at the Wellington Police Station on 16 September 2011. During the interview the complainant said that on the evening of 15 September 2011, she and a friend drank wine at her home before taking a taxi into Courtney Place at about 2 am. There they went to two bars, where the complainant drank rum and sangria. They then moved on to the Fringe Bar at the top of Cuba Street, where they continued drinking.
Whilst the complainant’s friend was in the bathroom at the Fringe Bar, the complainant became involved in a verbal altercation with another patron in the bar. This caused the bar manager to instruct her staff to ask the complainant and her friend to finish their drinks and leave. After they had finished their drinks, the complainant and her friend went outside and began talking to other patrons who were sitting at outside tables. The complainant’s friend gave one of these persons some money, and asked him to buy drinks for them all. A member of the bar staff subsequently observed the complainant and her friend consuming alcohol outside the bar, and removed their drinks from them. He then repeated his direction that the complainant and her friend were to leave the premises.
At that point the complainant’s friend became argumentative and abusive. He also demanded that the bar staff refund the cost of the drinks he had purchased. His conduct reached the point where the bar staff were forced to call the police, who attended the scene a short time later. After speaking to the complainant’s friend, the police discovered there was an outstanding warrant for his arrest. They then arrested him and took him to the Wellington Central Police Station. Before he left, the complainant’s friend gave the complainant his cellphone. He also gave her his eftpos card so that she could take a taxi home.
Rather than travel home, the complainant remained in the vicinity of the bar. Some time later, at approximately 6 am, the complainant said she began walking down Cuba Street with the intention of getting a taxi home. She said she needed to go to the toilet, and decided to use the public toilets on Manners Street. She said that as she opened the toilet door, a man came from behind her and shoved her into the toilet. She said that the man forced her to sit on the back of the toilet seat, while he held her hands against the wall above her head. The man then had sexual intercourse with her. After he had finished, he left the toilet. At that point the complainant saw her underpants lying on the ground, and put them in her handbag. She then walked to a nearby shop, where she told the shopkeeper she had been raped. Her friend’s cellphone then rang. When the complainant answered the call, she found it was her friend calling to say he had been released from the Police Station. The complainant told her friend what had happened, and he returned to the Cuba Street area where he met the complainant. The police were called and took the complainant to the police station, where she was interviewed about what had occurred.
Later that day, the complainant was examined by a doctor. The doctor found no outward signs of the complainant having been physically or sexually assaulted. Swabs taken from her vagina did not reveal the presence of any semen, but semen was subsequently found on her underpants. DNA extracted from the semen was identified as being highly likely to have emanated from Mr Malofie.
When the police subsequently interviewed Mr Malofie, he exercised his right not to make a statement. At trial, he did not give evidence. The jury was therefore left to reach its verdict based on the basis of the evidence adduced by the Crown.
Adequacy of representation by trial counsel: appellate principles
In order to succeed in an appeal based on alleged trial counsel error, the appellant must demonstrate there has been a miscarriage of justice.[1] In Sungsuwan v R, the Supreme Court set out the approach to be taken in such cases.[2] In R v Scurrah, this Court summarised the approach taken by the majority of the Supreme Court in Sungsuwan as follows:[3]
[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.
[1]Crimes Act 1961, s 385(1)(c).
[2]Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [70] per Gault, Keith and Blanchard JJ in the majority.
[3]R v Scurrah CA159/06, 12 September 2006.
An appellant will normally be bound by decisions that have been reasonably made by trial counsel, or by the appellant on the reasonable advice of trial counsel. This will be so even though such decisions may have affected the result.[4] The issue in the present case, therefore, is whether the manner in which trial counsel conducted the trial has resulted in a miscarriage of justice in the circumstances before us.
The alleged errors
[4]Gosnell v R [2014] NZCA 217 at [16].
Ms Gould, who conducted the appeal on Mr Malofie’s behalf, submitted that Mr Malofie’s trial counsel, Mr Crowley, erred in two principal respects in the strategy he adopted at Mr Malofie’s trial. She said both errors flowed from the fact that Mr Crowley’s trial strategy did not adequately reflect the instructions Mr Malofie had given Mr Crowley prior to trial. Mr Malofie had told Mr Crowley that he did not have sexual intercourse with the complainant in the toilets. Rather, he said that the complainant had willingly gone into the toilets with him, and that she had also willingly sucked his penis once they were inside the toilets. This provided an explanation for the semen later found on her underwear.
Given Mr Malofie’s instructions, Ms Gould submitted that it was a major mistake for Mr Crowley to advance as a primary defence the proposition that either the complainant had consented to whatever sexual activity occurred in the toilets, or there had been a reasonable belief on Mr Malofie’s part that she was consenting. Ms Gould submitted that these lines of defence created a real risk that the jury would take them as an implied acknowledgment by Mr Malofie that sexual intercourse had taken place in the toilets, when his firm instructions to Mr Crowley were that it had not.
Secondly, Ms Gould pointed out that Mr Malofie needed to place evidence before the jury of the fact that he had had consensual oral sex with the complainant. Although Mr Crowley had put this proposition to the complainant in cross‑examination, she had not accepted it. Given that Mr Malofie had not made any statement to the police, the complainant’s rejection of the proposition meant he had no choice but to give evidence in order to provide an evidential basis for what should have been his primary defence. She submitted that Mr Crowley did not properly advise Mr Malofie of the risks of not giving evidence in those circumstances, and this resulted in Mr Malofie making his decision without appreciating those risks.
Should Mr Crowley have advanced consent and/or reasonable belief in consent as primary lines of defence?
In order to determine this issue, it is necessary to consider the overall strategy that Mr Crowley adopted at trial.
For reasons we shall shortly explain, Mr Crowley proceeded prior to trial on the basis that it was unlikely Mr Malofie would give evidence at trial. As a result, he considered Mr Malofie’s best interests would be served by challenging the Crown’s ability to prove lack of consent and/or reasonable belief by Mr Malofie that the complainant was consenting to whatever sexual activity occurred in the toilets. Mr Crowley therefore asked the complainant questions designed to highlight the quantity of alcohol she had consumed during the course of the evening. The complainant had freely acknowledged during the videotaped interview that she was quite drunk by the time she left the Fringe Bar to walk down Cuba Street. Mr Crowley sought to highlight this in his cross-examination of both the complainant and the Crown witnesses who observed her that night.
Mr Crowley had the complainant confirm the amount of wine she had drunk at home before coming into the city, and also obtained confirmation that she continued drinking after she arrived in Courtenay Place. Mr Crowley then explored this topic further when he cross-examined the complainant’s friend. He also obtained confirmation from the bar staff that the complainant was clearly affected by alcohol when she first arrived at the Fringe Bar. The evidence given by the bar staff also demonstrated that the complainant had been acting in an obnoxious manner during the verbal altercation with the patron. The witnesses who gave evidence of seeing the complainant in the shop immediately after the incident in the toilets likewise confirmed that she appeared the worse for wear from the consumption of alcohol.
This line of cross-examination would obviously have left the jury with the clear impression that the complainant must have been significantly affected by alcohol by the time she finally left the bar to walk down Cuba Street at around 6 am. This enabled Mr Crowley to urge the jury not to rely upon the complainant’s memory of the events that occurred in the toilets. It also enabled him to ask the jury to accept that it was likely that her judgment was impaired as a result of consuming alcohol. This potentially gave the defence a basis for asking the jury to accept that she was likely to have been a willing participant in whatever form of sexual activity obviously occurred subsequently in the toilets.
The defence case was assisted significantly in this regard by film footage obtained from closed circuit television (CCTV) cameras situated in fixed positions in Cuba Street near the Fringe Bar. When this was played to the jury, it showed the complainant and Mr Malofie together in the street near the Fringe Bar at about 5.45 am. It then showed them walking down Cuba Street together, with Mr Malofie having his arm around the complainant as they did so. At one stage they stopped and sat down on a bench, where they could be seen kissing. The footage then showed the complainant and Mr Malofie continuing to walk down Cuba Street towards Manners Street.
The significance of the CCTV footage was twofold. First, it further dented the complainant’s credibility because it demonstrated that she did not encounter Mr Malofie for the first time until he “came from nowhere” when she reached the toilets, as she had said during her videotaped interview. Secondly, it showed, and in a very graphic way, that the complainant had engaged in consensual intimate acts with Mr Malofie well before the point at which they reached the toilets.
Next, Mr Crowley sought to undermine the complainant’s credibility in relation to the act of intercourse she alleged had taken place inside the toilets. First, he questioned her about whether she had locked the door of the toilet after she and Mr Malofie had entered it. Her evidence on that point had been ambiguous during the videotaped interview. The obvious point to be made from this line of cross‑examination was that the complainant was hardly likely to lock the door after a total stranger had suddenly followed her into the toilets.
Mr Crowley also suggested to the complainant that it was physically impossible for sexual intercourse to have occurred whilst she was sitting on the toilet in the position she had described. He also challenged her evidence about the manner in which she claimed Mr Malofie had pinned her arms behind her against the wall of the toilet cubicle.
Mr Crowley then suggested that Mr Malofie had entered the toilet with the complainant, and had urinated in the hand basin whilst she was using the toilet. The complainant said she had no recollection of this having occurred. Mr Crowley then put to the complainant the proposition that after urinating in the hand basin, Mr Malofie had turned around with his penis exposed. She did not recall that occurring. Mr Crowley then asked the complainant whether she recalled taking Mr Malofie’s penis in her hand, and manually stimulating him. Again she said she did not recall that. Next, Mr Crowley suggested to the complainant that she had taken Mr Malofie’s penis into her mouth, and had sucked it. She denied that this had occurred. Mr Crowley then asked her whether that was what had caused Mr Malofie to ejaculate in the toilet, but she again said no.
Mr Crowley then put to the complainant the proposition that the sequence of events he had just described correctly described the sexual activity that had occurred in the toilet. She denied that that was the case. She confirmed that she could recall picking up her underwear from the floor of the toilet, but said she could not remember how they had got there.
The complainant then denied that she and Mr Malofie had left the toilets together and continued walking down Manners Street. The CCTV footage assisted the defence case on this point, because it showed the complainant walking down Manners Street with Mr Malofie a short distance behind her. The footage also showed the complainant talking into her cellphone. Mr Crowley suggested to the complainant that this was the point at which she had received a call from her friend, and that it was only then that she decided she needed to distance herself from Mr Malofie. The complainant denied that this was the case, but had no recollection of walking down Manners Street with Mr Malofie after leaving the toilets.
We consider that in the particular circumstances of this case, Mr Crowley was entirely correct to adopt the strategy he did. There was no conflict with his client’s version of events, because Mr Crowley put Mr Malofie’s version of events to the complainant for her comment. He also challenged her claim that she had had sexual intercourse with Mr Malofie in the toilets. Mr Crowley’s approach made it quite clear to the jury that Mr Malofie did not accept that sexual intercourse had occurred, and it also capitalised on the large body of evidence suggesting that the jury needed to be very cautious about relying on the evidence of the complainant alone.
We also reject Ms Gould’s submission that Mr Crowley ought to have focussed the defence case on Mr Malofie’s claim that he had had consensual oral sex with the complainant. That strategy would have amounted to an “all or nothing” approach. It would have left Mr Malofie seriously exposed if the jury ultimately concluded, as they obviously did, that sexual intercourse had taken place. Such an approach would have deprived Mr Malofie of the ability to advance dual defences based on consent and/or reasonable belief in consent. Those defences were clearly available on the evidence, and we consider Mr Crowley would have been open to criticism if he had not advanced them on Mr Malofie’s behalf.
We therefore reject the argument that Mr Crowley erred in the approach that he took to Mr Malofie’s defence at trial. This ground of appeal fails as a result.
Failure to call Mr Malofie to give evidence
As we have already recorded, this ground of appeal is based on the fact that there was no evidential basis to support a submission to the jury that Mr Malofie and the complainant had engaged in consensual oral sex in the toilet. The only person who could have given such evidence was Mr Malofie. The issue is therefore whether Mr Crowley’s failure to call Mr Malofie to give that evidence amounted to an error. If it did, the Court would need to consider whether the error has caused a miscarriage of justice.
Mr Malofie accepts that he made the final decision not to give evidence, and that Mr Crowley did not pressure him into making that decision. He also accepts that Mr Crowley advised him of the risks that he would take if he elected to give evidence. He says, however, that when he made his final decision not to give evidence he did not fully appreciate the risks associated with that decision. In particular, he did not appreciate that unless he gave evidence, Mr Crowley could not ask the jury to accept there was a reasonable possibility that Mr Malofie and the complainant had engaged in consensual oral sex in the toilets. Mr Malofie accepts that Mr Crowley may have explained that risk during earlier meetings at Mr Crowley’s office prior to the trial. He says, however, and Mr Crowley accepts, that Mr Crowley did not repeat the advice at the point in the trial where Mr Malofie had to make the final decision whether or not to give evidence.
At first blush, the decision not to call Mr Malofie to give evidence may seem surprising, particularly given Mr Malofie’s apparently firm instructions to Mr Crowley that he had engaged in consensual oral sex with the complainant in the toilets. That assertion explained both his presence in the toilets and the semen subsequently found on the complainant’s underwear. The CCTV footage also provided solid support for the proposition that Mr Malofie and the complainant were on good terms before they entered the toilets.
It is now clear, however, that the decision whether or not to call Mr Malofie to give evidence was far from straightforward. Had Mr Malofie been an articulate witness with the ability to withstand the prosecutor’s cross-examination, the issue may have been clear-cut. Mr Crowley deposes, however, that this was not the case. Counsel for Mr Malofie did not seek to challenge Mr Crowley’s evidence on this or any other point, so for present purposes Mr Crowley’s evidence must be accepted.
Mr Crowley’s evidence
Mr Crowley deposes that he approached the task of briefing Mr Malofie to give evidence at trial carefully. He met with Mr Malofie on several occasions to discuss what had happened on the morning of 16 September 2011. In early to mid‑2013, Mr Crowley began drafting Mr Malofie’s brief of evidence. Mr Malofie made suggestions and alterations, and the brief of evidence was gradually refined until Mr Malofie and Mr Crowley were both satisfied it represented Mr Malofie’s version of events. Mr Crowley says that preparation of the brief of evidence was complicated by the fact that Mr Malofie had been very intoxicated on the night of the incident. As a result, his memory of events varied, and there were periods of time in respect of which he had no memory.
In order to prepare Mr Malofie to give evidence, Mr Crowley took him to the Wellington District Court, where they sat in a courtroom and watched a trial. After having watched a witness give evidence-in-chief and then be cross-examined, Mr Malofie told Mr Crowley he felt more confident in his ability to give evidence.
Mr Crowley says they then decided that Mr Malofie should practise giving evidence. They subsequently had several sessions in the boardroom of Mr Crowley’s chambers in which Mr Malofie gave his version of events. Mr Crowley arranged for his junior counsel to be present during those sessions so that Mr Malofie could become accustomed to speaking to strangers about intimate matters. He says that these sessions did not go well. They tried to run through Mr Malofie’s brief on several occasions but found that although Mr Malofie had some clear memories of the night in question, he could not properly articulate them. When Mr Crowley pretended to cross-examine Mr Malofie, he did not seem to be able to answer any question that Mr Crowley asked in a forceful manner.
Mr Malofie’s response to this type of questioning caused Mr Crowley to become anxious about the prospect of him giving evidence. Mr Crowley considered that Mr Malofie ought to give evidence if possible, because he had not made a statement to the police. There was no point in calling him to give evidence, however, if he was not up to the task.
Mr Crowley says he and Mr Malofie went over Mr Malofie’s evidence again for more than two hours on 25 July 2013, shortly before the trial was due to commence on 29 July 2013. Again, Mr Malofie either misstated or forgot much of the detail in his brief of evidence. Mr Crowley pretended to cross-examine Mr Malofie in order to prepare him for trial, but again this did not go well. Mr Malofie answered many pertinent questions with the phrase “I do not remember this”. On other occasions during this process, Mr Malofie responded by asking Mr Crowley to repeat the question. When Mr Crowley did so, Mr Malofie said nothing at all. When Mr Crowley asked Mr Malofie why he could not answer, Mr Malofie said his mind just “froze”.
Mr Crowley met with Mr Malofie again on 28 July 2013 for more than two hours. Junior counsel was again present. During this session, Mr Crowley says that Mr Malofie got most of the details of his brief of evidence wrong, although he later confirmed that it was his answers that were incorrect rather than his brief of evidence. Simulated cross-examination went equally badly. When Mr Crowley put to Mr Malofie the proposition that he had pinned the complainant’s arms against the wall of the toilet, Mr Malofie said nothing at all for about 20 seconds. He then nodded his head emphatically twice, before saying “I do not remember this”. In his brief of evidence, Mr Malofie had categorically denied pinning the complainant’s arms against the wall. When Mr Crowley asked him why he had nodded his head in answer to the question, Mr Malofie said he did not know. At the conclusion of this session, Mr Crowley discussed Mr Malofie’s performance with junior counsel in Mr Malofie’s presence. They all agreed that everything pointed to it being “a complete disaster” for Mr Malofie if he gave evidence at his trial.
Mr Crowley says that during the days leading up to the trial, he and Mr Malofie agreed they would wait and see how the prosecution case went before making a final decision as to whether Mr Malofie would give evidence. Mr Crowley says he had reached the view that he would only advise Mr Malofie to give evidence “if we were up against it”. For that reason he considered it would be prudent to focus on the issue of consent and/or reasonable belief in consent as the primary lines of defence at trial. Those defences could be run without Mr Malofie being required to give evidence.
When the trial began, Mr Crowley cross-examined the complainant for most of the afternoon of the first day. At the end of the day he took Mr Malofie back to his chambers, where they discussed the day’s events. Mr Crowley and Mr Malofie both believed that Mr Crowley’s cross-examination of the complainant had gone well, and that Mr Malofie’s evidence would not add a great deal to what Mr Crowley had already extracted from her during cross-examination. Mr Crowley said he then advised Mr Malofie “they [the jury] want to hear it from you”. He said that Mr Malofie was concerned that he would not give evidence effectively. He was also concerned that he would undo the progress that Mr Crowley had made in his cross‑examination of the complainant. Mr Crowley shared Mr Malofie’s concerns regarding this issue. At this point, Mr Malofie instructed Mr Crowley that he did not want to give evidence. Mr Crowley then let him think about the issue overnight.
The next day, Mr Malofie gave Mr Crowley written instructions that he did not wish to give evidence. Mr Crowley maintains his view that it would have been disastrous for Mr Malofie’s case if he had given evidence because of his inability to respond positively to simulated cross-examination.
Mr Malofie’s evidence
After explaining that he did not appreciate the risks inherent in not giving evidence, Mr Malofie’s deposes:
[10] I think that all I would have needed to have been able to give evidence, was for my lawyer to let me take my time and just start talking to the jury about myself and about what happened between myself and the Complainant from the time we first started talking outside a bar until the encounter inside the toilet cubicle and what happened after that. I think that if the Prosecutor had tried to make me admit to rape in cross-examination I would have been able to stand up to her because I knew that I had not raped the Complainant.
Mr Malofie then outlines his recollection of the events that occurred on the morning of 16 September 2011.
Importantly, however, Mr Malofie does not challenge Mr Crowley’s evidence about the extensive efforts that he and his junior counsel went to prior to the trial to prepare Mr Malofie for giving evidence at trial. Nor does he dispute Mr Crowley’s evidence that these efforts did not succeed in bringing him to the point where he could respond satisfactorily to questions put in simulated cross-examination.
Mr Malofie may now believe that he had the ability to respond adequately to cross-examination, but Mr Crowley’s evidence makes it clear that Mr Malofie did not give that impression at the point where he needed to decide whether or not to give evidence. We consider that Mr Malofie ultimately decided not to give evidence because he shared his trial counsel’s view that giving evidence created the risk that he would undo the progress Mr Crowley had made during his cross-examination of the complainant. That was a reasonable and rational decision for Mr Malofie to make having regard to the point the trial had reached, and his obvious inability at that time to respond positively to questions put to him in simulated cross-examination.
Mr Crowley was still able to mount an effective defence without calling Mr Malofie to give evidence, and thereby exposing him to cross-examination by the prosecutor. The effectiveness of the defence is demonstrated by the fact that the Judge felt compelled to provide the jury with the following advice in his summing up:
[41] I want to discuss the evidence of the complainant and some aspects of it with you. You will all appreciate that your assessment of her credibility and reliability is vital in this case. For you to convict the accused on the charge he faces you must be satisfied beyond reasonable doubt of the essential ingredients of the charge of sexual violation by rape through her evidence. As a jury you are perfectly entitled to rely on her evidence alone but you may think as a matter or prudence and caution that you should look at all of the other evidence in the case and see if there [is] evidence that tends to support or back up, or refute, that is go against her account of events. It is her account of events inside the toilet cubicle which is crucial. Although you may rely purely on her evidence, prudence and caution would suggest that you look for supporting evidence.
The strength of the defence case is also reflected by the fact that the jury took nearly two days to reach its decision, and then delivered a majority verdict.
We therefore do not accept that Mr Crowley erred in the advice that he gave Mr Malofie immediately before he elected not to give evidence.
Even if we had reached a different view regarding this issue, we do not consider that any failure to remind Mr Malofie during the trial of the risks inherent in not giving evidence is likely to have resulted in a miscarriage of justice. Mr Malofie would still have been required to balance those risks against the risks that would arise if he gave evidence. We consider that Mr Crowley had correctly assessed the latter as outweighing the former by a comfortable margin. It is also highly likely that Mr Malofie would have accepted Mr Crowley’s advice regarding that issue.
It follows that, even if we had found that Mr Crowley had erred in not reminding Mr Malofie of the risks inherent in not giving evidence immediately before he made that decision, the error has not resulted in a miscarriage of justice.
Result
The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
0
0