Manirakiza v Police

[2020] NZHC 1555

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-451

[2020] NZHC 1555

BETWEEN

EMMANUEL MANIRAKIZA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	29 June and 1 July 2020
Appearances:	D Taumihau and P S Dean for Appellant J V Barry for Respondent
Judgment:	3 July 2020

JUDGMENT OF LANG J

[on appeal against conviction]

Solicitors:

Crown Solicitor, Auckland

MANIRAKIZA v NEW ZEALAND POLICE [2020] NZHC 1555 [3 July 2020]

[1]                 Mr Manirakiza was found guilty on a charge of indecent assault following a Judge-alone trial before Judge A C Roberts on 19 October 2019.1 On the same date the Judge sentenced Mr Manirakiza to nine months supervision.

[2]                 Mr Manirakiza appeals against conviction on the basis that his trial counsel, Mr Paul Heaslip, erred in several respects in conducting Mr Manirakiza’s defence. Mr Manirakiza says Mr Heaslip failed to advise him the Judge could take into account the evidence of the female complainant and to advise him he could give evidence in his own defence. He also says Mr Heaslip failed to properly brief the only witness called for the defence at trial. This resulted in the witness giving evidence that was unfavourable to the defence.2

[3]                 The appeal must be determined in accordance with s 232 of the Criminal Procedure Act 2011 (the Act). This Court is required to allow the appeal if for any reason a miscarriage of justice has occurred.3 In this context a miscarriage of justice will have occurred if an error or occurrence in relation to or affecting the trial has created a real risk that the outcome of the trial was affected.4

The hearing in the District Court

[4]                 It was common ground that there was a lengthy history of acrimony between Mr Manirakiza and the complainant. They lived on opposite sides of a shared driveway. The discord resulted  in  the  complainant  serving  a  trespass  order  on Mr Manirakiza prohibiting him from coming onto her property.

[5]                 The prosecution called two witnesses, the female complainant and a police officer who responded to a call from neighbours who heard the incident that resulted in Mr Manirakiza being charged.

1      New Zealand Police v Manirakiza [2019] NZDC 26424

2      In closing submissions Mr Taumihau abandoned grounds of appeal alleging Mr Heaslip had failed to ensure other defence witnesses were called to give evidence and that he failed to take adequate steps to obtain an adjournment of the trial at the close of the Crown case.

3      Criminal Procedure Act 2011, s 232(c).

4      Section 232(4)(a).

[6]                 On the evening of Saturday 4 August 2018, Mr Manirakiza was dropped off at the driveway to his address by two friends, Messrs Olivier Mugisho and Nkwame Osei. The complainant said that as Mr Manirakiza walked down the driveway to his address he saw the complainant in the carport of her address. He approached her and began to make offensive and inappropriate remarks. He then walked up to her and placed his hands on her shoulders and her breasts.

[7]                 The complainant immediately began yelling at Mr Manirakiza and a physical altercation occurred. At this stage Mr Manirakiza’s associates were still in their car at the top of the driveway. They heard the yelling and Mr Osei and Mr Mugisho walked down the driveway to find out what was happening. The complainant said they began pushing and shoving her, and that she punched Mr Mugisho in the mouth as a result. The incident came to an end when the police arrived at the address.

[8]                 Constable Munster, one of the police officers who responded to a call from a neighbour, spoke briefly to Mr Osei as he was leaving the address. The officers then arrested the complainant after she told them she had punched Mr Mugisho during the incident. They took her back to the police station where they obtained a detailed statement from her. This persuaded the police that the complainant had been the victim of the incident that had occurred in the driveway of her address. They released her with a warning and returned to speak to Mr Manirakiza. Constable Munster said they found Mr Manirakiza “incoherently drunk”, but he denied any wrongdoing towards the complainant. He was arrested and charged with indecent assault and breaching the trespass notice.5

[9]                 Mr Manirakiza did not give evidence at trial but called Mr Osei to give evidence on his behalf. Mr Osei gave evidence about the physical altercation he had observed between Mr Manirakiza and the complainant. He said he saw the complainant with her hands around Mr Manirakiza’s throat. He also gave evidence that when he arrived  at  the  scene  he  heard  the  complainant  say  “Emmanuel  [Mr Manirakiza] have touched me”.

5      The Judge dismissed the latter charge.

[10]             The Judge accepted the truthfulness of the complainant’s account. He rejected much of what Mr Osei said because Mr Heaslip had not put it to the complainant. However, the Judge considered the comment Mr Osei said he heard the complainant make about Mr Manirakiza touching her was “telling”. The reasons for the Judge’s decision are encapsulated in the following paragraphs:

As to the assault, I have no hesitation in accepting the complainant’s evidence, “He grabbed my boobs”. As I have said, I found her to be a truthful and reliable witness. The laying on of hands, I am satisfied occurred. Mr Heaslip addressed me, he submitted that there was no indication at all that the defendant had secured any sexual excitement from the act. That is not however the test. The issue is, whether there was a touching in circumstances of indecency. Of course I am satisfied, noting the distress after the incident, that this complainant did not consent to the touching.

Mr Manirakiza is not a young man and would well understand the problems that attach to uninvited, unsolicited touchings. As I stress, he is not a young man, he would know and understand, particularly in circumstances such as this, where tempers are frayed, and the circumstances suggest further deterioration, that this would [not] be an act that the complainant would accommodate. I am helped in my determination recognising the disharmony between the parties and the fact that it was a two-handed grabbing. Consent could not be contemplated. I am satisfied too, that even in the circumstances of a physical and oral dispute, there were circumstances of indecency, that is an area where men should ensure that here is no contact unless it is truly [by] consent. I find the charge of indecent assault proved.

Trial counsel error

[11]             There is no dispute regarding the principles to be applied when trial counsel error is advanced on appeal. In short, it is not sufficient for the appellant to demonstrate there has been error by trial counsel in conducting the defence. Rather, the test is whether a miscarriage of justice has occurred.

[12]             The leading judgment is that of the Supreme Court in R v Sungsuwan.6 In that case the Supreme Court observed:7

… 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 a real concern for the safety of a verdict as a result of the

6      R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.

7 At [70].

conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

[13]             In R v Scurrah, the Court of Appeal summarised the approach to be taken as follows:8

[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

…

[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 …

[14]             In R v Hall, the Court of Appeal identified trial decisions that can be described as fundamental.9 An election whether to give evidence is a fundamental trial decision, as is the obligation to ensure the defendant is properly informed before the election is made. The involves an assessment as to whether the defendant was properly advised of the state of the case he or she faces, its strengths and weaknesses and the advantage and disadvantages of giving evidence.10 Trial counsel should also make it clear to the defendant that the decision as to whether to give evidence is entirely that of the defendant.11

[15]             Where errors in making less fundamental trial decisions are relied on, a miscarriage of justice will generally only occur if the decision in question was not one a competent trial lawyer would have made and if what actually happened may have affected the outcome.12

[16]             In the present case Mr Manirakiza alleges Mr Heaslip made two fundamental errors. First, he failed to advise Mr Manirakiza that the Judge could take the complainant’s evidence into account in assessing Mr Manirakiza’s guilt. Secondly, he

8      R v Scurrah CA159/06, 12 September 2006.

9      R v Hall [2015] NZCA 403, [2018] 2 NZLR 26 at [65].

10     Weston v R [2019] NZCA 541 at [42].

11     Nightingale v R [2010] NZCA 473 at [10].

12 At [77].

failed to advise Mr Manirakiza that he had the right to give evidence in his own defence.

[17]             Mr Manirakiza also contends Mr Heaslip also made another error that may have affected the outcome of the trial. This is that he failed to ensure Mr Osie was properly briefed before he gave evidence. Had Mr Heaslip taken that step he would have discovered Mr Osie was likely to give evidence about the remark that he heard the complainant make.   This undermined the defence in a significant way.   Had    Mr Heaslip become aware of what Mr Osei was likely to say he would not have called Mr Osei as a witness and Mr Manirakiza would have given evidence in his own defence instead.

Failure to advise Mr Manirakiza the Judge could take the complainant’s evidence into account

[18]             Mr Manirakiza said in his affidavit filed in support of the appeal that he believed the case would be decided on the basis of the evidence given by independent witnesses. He therefore did not know the Judge would take into account the evidence given by the complainant. He did not become aware that his understanding was incorrect until he obtained advice from counsel representing in relation to the present appeal.

[19]             Mr Heaslip disputes  Mr  Manirakiza’s  evidence  on  this  point.  He  says  Mr Manirakiza always understood the prosecution would be relying largely on the complainant’s evidence and that the Judge would be taking it into account.

[20]             I have no hesitation in accepting Mr Heaslip’s evidence on this point. Furthermore, prior to the trial Mr Manirakiza provided Mr Heaslip with a statement in which he set out his version of events. The affidavit began with the following passage:

1.I am writing the present affidavit in response to the statement made by […], the plaintiff, before New Zealand Police and subsequent charges levelled against me in the proceedings before The Waitakere District Court CRN 180-9000-5236.

2.The allegations put forward by the plaintiff are absolutely false. I will draw in this affidavit undisputable evidence proving that the allegations are unfounded and constitute a clumsy distortion of events.

[21]             This passage demonstrates quite clearly that Mr Manirakiza knew he needed to counter the allegations made by the complainant. Mr Manirakiza was also present when the complainant gave her evidence by CCTL link as the first witness for the prosecution. I have no doubt he was well aware the Judge would be taking her evidence into account in making his decision. No other witness was able to give evidence for the prosecution about the central events that took place on the night of the incident giving rise to the charges. This ground of appeal has no merit.

Failure to advise Mr Manirakiza of his right to give evidence

[22]             Mr Manirakiza contends Mr Heaslip never advised him he had the ability to give evidence at the trial. If he had been given that opportunity he would have told the Judge that the complainant abused him verbally and attacked him physically as he walked down his driveway. His associates then intervened to stop that attack. He would also have denied touching the complainant on either the shoulders or the breasts.

[23]In his affidavit filed in support of the appeal Mr Manirakiza deposes:

72I also did not realise that I could have stood up in Court and told the Court what happened that night.

73Although Paul did speak to me about giving evidence, I thought that this meant having witnesses give evidence that support my version of events.

74When Paul told me that there was a case to answer, I thought that my witnesses would answer it for me.

75The Judge did not speak to me about standing up in Court and giving my version of events.

…

78I have not been through a trial before in New Zealand.

79I am not a lawyer, so I am unaware of the process.

…

83[If] I had known what I meant to give evidence in my case [sic], then I would have told the Court for myself, what happened.

[24]             Mr Heaslip disputes these assertions. He says Mr Manirakiza was well aware he had the right to give evidence and decided on advice not to do so. He says they agreed there were dangers in Mr Manirakiza  giving evidence because this risked   Mr Manirakiza being cross-examined about his acrimonious relationship with the complainant. Mr Heaslip was also concerned Mr Manirakiza would become agitated or angry during cross-examination and this may affect the way in which the Judge viewed his evidence. He deposes:

70I completely refute the suggestion that Mr Manirakiza did not realise that he could give evidence. We had a number of discussions about that, including the potential benefits and negatives associated with that decision over my time acting for him. That included the two hours and 15 minutes or so between the conclusion of the prosecution case and the defence case. I advised him that the decision of whether he gave evidence or not was completely up to him. I also said that just because he gave evidence did not mean he had to prove anything. Similarly, if he did not give evidence that could not count against him. However, I did say that in this case I believed there was a case to respond to, and that unless there was some evidence from the defence (either from him and/or another witness) that the Judge may not entertain a reasonable doubt about the account the complainant had given. It was in that context that I discussed the particular advantage of Mr Osei giving evidence in this case for the defence alone (for the reasons discussed above at particular 51-53).

71I told him that in this case, the advantage of his evidence was that he could completely refute the complainant’s account, as being present for the entire incident. However, the disadvantages in this case were as I set out above at 53. The Police Officer who attended also described him as heavily intoxicated. Mr Manirakiza would be open to cross-examination about his history with the complainant, which might agitate him in giving evidence and not make him the best witness. However, I said in this case, we had the opportunity to call Mr Osei, and that there was a real advantage to calling him because of his ability to undermine the complainant’s account of the location of the incident – assuming he said what we thought he was going to say.

72I impress upon all of my clients the importance of the decision as to whether to give or call evidence. Despite the difficulties we experienced in trying to locate defence witnesses, I gave my advice on this issue carefully and thoroughly, as I always do.

[25]             Mr Heaslip says Mr Manirakiza agreed with his advice that there were risks in giving evidence and that Mr Osei would be able to provide the Judge with evidence about the role the complainant played in the incident. He then recorded the outcome

of this discussion in a written instruction that Mr Manirakiza signed. This was as follows:

I Emmanuel Manirakiza confirm and instruct:

1.I have heard the prosecution case.

2.Paul advises me there is a case to answer. In short she says I grabbed her boobs & was on her property. The officer gave evidence there was a valid trespass notice.

3.I understand I have a right to give evidence but no onus of proof.

4.I want to call Osei & Tigre.

5.Osei is available & will be here at 2.15 pm.

6.Paul and I try and find Tigre’s number.

7.We are still trying to track down Olivier but if we cannot locate him then we will flag him.

(Emphasis added)

[26]             I accept Mr Heaslip’s evidence regarding the advice he gave to Mr Manirakiza about his right to give evidence. It is in line with what one would expect of any reasonably competent defence counsel and is supported by the written instructions Mr Manirakiza signed at  the close of the prosecution case.  I have no  doubt  that  Mr Heaslip advised Mr Manirakiza fully regarding the risks and rewards associated with him giving evidence, and that Mr Manirakiza made an informed decision not to give evidence. He did so on the basis of his understanding that Mr Osei would be giving evidence to support the defence case.

[27]This ground of appeal fails as a result.

Failure to properly brief Mr Osei’s evidence

[28]             At an early stage Mr Manirakiza identified several persons who might be able to give evidence for the defence in relation to the charge of indecent assault. These included Messrs Olivier Mugisho and Kwame Osei, who were in the car at the top of the driveway when they heard yelling down the driveway. They both came down the driveway to see what was happening. Mr Mugisho had been charged with assaulting

the complainant and Mr Manirakiza’s bail conditions prohibited him from having any contact with Mr Mugisho before trial.13

[29]             Mr Heaslip acknowledges he was aware these witnesses could give evidence that was potentially relevant to the charge. There is a conflict in the evidence as to who assumed responsibility for contacting the witnesses and ensuring they would be available to give evidence at the trial. Mr Heaslip says he was unable to contact the witnesses using the telephone numbers provided by Mr Manirakiza and understood Mr  Manirakiza  would  be  contacting  them.  Mr  Manirakiza  says  he  believed   Mr Heaslip was making contact with the witnesses.

[30]                I suspect the answer lies somewhere in the middle. There is certainly evidence to suggest Mr Heaslip agreed to contact the witnesses because he sent Mr Manirakiza an email to that effect on 15 July 2019. He also confirmed he spoke to Mr Mugisho’s counsel about the prospect of Mr Mugisho giving evidence for the defence.

[31]               At the very least, however, I consider any reasonably competent defence counsel would have contacted Mr Manirakiza not later than the week prior to the trial to ensure he had matters in hand. If Mr Heaslip had then discovered Mr Manirakiza had not been in contact with the witnesses he would still have had sufficient time before trial to ensure the witnesses were briefed and available to give evidence the following week. As it turned out, the fact that the witnesses were not at court did not become apparent until the morning of the trial.

[32]             Mr Heaslip and Mr Manirakiza spoke to Mr Osei by cellphone on the morning of the trial. During this discussion Mr Osei agreed to give evidence but said he could not come to court until later in the day. he also outlined in broad terms the evidence he could give. This was that the complainant was the aggressor during the incident that led to the charge, and that the altercation occurred on Mr Manirakiza’s side of the driveway rather than near the complainant’s carport as she alleged. Mr Heaslip proposed to rely on Mr Osei’s evidence about these issues to submit that the complainant’s evidence about Mr Manirakiza touching her breasts was unreliable.

13     It appears that the charges against Mr Mugisho have now either been withdrawn or dismissed.

[33]             Mr Osei did not mention during this discussion that the complainant had said Mr Manirakiza had touched her.  Nor is it surprising that Mr Heaslip did not ask   Mr Osei directly about that issue because the complainant’s statement to the police did not contain any reference to her having made the remark.

[34]             The prosecution case finished at 11.45 am and the Judge then took the morning adjournment. When court resumed Mr Heaslip advised the Judge that Mr Manirakiza elected not to give evidence but would be calling Mr Osei, who would not be available until 2.15 pm. The Judge then adjourned with some reluctance until 2.15 pm.

[35]Mr Osei had agreed to be at Court by 2 pm that day. He did not arrive until

2.15 pm when the hearing was scheduled to resume. Mr Heaslip sought a short adjournment so he could discuss Mr Osei’s evidence with him but the Judge directed him to call his witness. This meant Mr Heaslip had no further opportunity to brief  Mr Osei’s evidence before he gave evidence.

[36]             After describing in evidence-in-chief how Mr Manirakiza had left the vehicle and walked down the driveway Mr Osei gave the following evidence:

Q.       Just in your own words, describe what happens next?

A.So I stopped the car, Emmanuel got out of the car, he’s walking down  to his house and then whilst me and Olivier was talking in the car we see a noise, yelling noise, so Olivier told me, “Oh I think there’s something going on.” So we got out of the car, the lady Emmanuel neighbour holding Emmanuel by the throat saying that, “Emmanuel has touched her.”

[37]             Later during examination-in chief Mr Heaslip returned to the issue of what had occurred when Mr Osei arrived on the scene. At this point the following exchange occurred:

Q.       How did you try and calm her down?

A.We told – I told her personally, “Please calm down, we can solve this. It doesn’t need to resolve in violence, we don’t know what happened,” but the lady was say that Emmanuel have touched me, and I said, we said, “We didn’t see him touching you. All that we’ve seen now is you holding his throat. Please calm down.”

Q. When she said, “Emmanuel has  touched  me,”  what  did  you  understand that to mean?

A. I don’t know where he means, she means by that, that Emmanuel have touched her.

Q.       Mm.

A.       That’s what she claimed. I wasn’t there that what happened.

[38]             Not surprisingly, the prosecutor also directed Mr Osei’s attention to what the complainant had said during cross-examination:

Q.So when you made the enquiry about what  was happening, why    people were upset, she spontaneously said, “It was because he touched her”?

A.       That’s what she said.

Q.       That’s what she said

A.       Yes.

[39]             Mr Osei’s evidence on this issue obviously came as a complete surprise to  Mr Heaslip. He was also under no illusions as to its likely impact on the Judge. He therefore sought further instructions from Mr Manirakiza as to whether he wished to change his plea after Mr Osei had completed his evidence. Mr Manirakiza elected to maintain his plea of not guilty.

[40]             Mr Mushigo was working that day and could not attend court. After Mr Osei had given evidence Mr Heaslip applied to the Judge for leave to adduce Mr Mushigo’s evidence by telephone link but the Judge declined the application. The Judge also declined an application by Mr Heaslip for an order that he be permitted to produce a copy of a written statement Mr Mugisho had made to the police. Mr Heaslip then made closing submissions and the Judge delivered his decision.

[41]             I accept that nothing in the complainant’s prior statements or her evidence at trial would have alerted Mr Heaslip to the prospect that she may have told Mr Osei and Mr Mugisho that Mr Manirakiza had touched her. However, Mr Osei volunteered his evidence about that issue as soon as Mr Heaslip asked him what happened after he and Mr Mugisho approached Mr Manirakiza and the complainant in the driveway. This suggests he would have disclosed it to Mr Heaslip if he had briefed Mr Osei’s evidence in any detail before he gave evidence.

[42]             Events beyond Mr Heaslip’s control clearly prevented Mr Heaslip from briefing Mr Osei’s evidence in any meaningful way on the day of the trial. I am satisfied, however, that Mr Heaslip should not have left it until the day of the trial before attempting to brief the evidence. Mr Osei appears to have been readily contactable on the day of the trial and there is no apparent reason why that would not have been the case during the days leading up to the trial.

[43]             It may also have been possible for Mr Heaslip to have obtained leave from the Judge to allow Mr Manirakiza to give evidence after Mr Osei had given his evidence even though he had earlier told the Judge Mr Manirakiza would not be giving evidence. There is no way of knowing whether the Judge would have permitted this to occur, but it was probably the only practicable means by which to salvage the defence after Mr Osei had given his evidence. Mr Manirakiza does not rely on this as an additional error by Mr Heaslip, however, so I take it no further.

[44]             The fact that Mr Osei gave evidence about what the complainant said cannot constitute a miscarriage of justice because there is nothing to suggest he was not telling the truth. However, if Mr Heaslip had known Mr Osei would give that evidence he would obviously not have called him as a witness. In that event he and Mr Manirakiza would have been required to reconsider the issue of whether Mr Manirakiza should give evidence. The instructions that Mr Manirakiza signed at the conclusion of the prosecution case recognised that there was a case to answer.14 In all likelihood that would also have been clear prior to the trial. If Mr Osei was not to be called as a witness Mr Manirakiza would have had little option but to give evidence himself to counter the evidence given by the complainant even though this gave rise to appreciable risk.

[45]             I have therefore concluded that Mr Heaslip’s failure to brief Mr Osei’s evidence prior to the trial was an error that directly affected Mr Manirakiza’s decision not to give evidence in his own defence. If the error had not been made Mr Manirakiza would in all probability have elected to give evidence because he had no other means of countering the complainant’s version of events. The Judge would then have been

14 Set out above at [25].

faced with two competing accounts. It would therefore have been necessary for him to determine whether he was sure the complainant was telling the truth or whether Mr Manirakiza’s evidence left him in a state of reasonable doubt. The Judge may well have decided in favour of the complainant but I have no means of determining that in the present context.

[46]             The error has therefore created a real risk that the outcome of the trial was affected. This constitutes a miscarriage of justice in terms of s 232(2)(c) of the Act.

Result

[47]             The appeal against conviction is allowed. The conviction and sentence are set aside, and I make a direction under s 233(3)(b) of the Act that a new trial is to be held in the District Court.

Lang J