Manukau v The Queen
[2013] NZCA 605
•3 December 2013 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA9/2013 [2013] NZCA 605 |
| BETWEEN | KARAUNA TUMANAKO MANUKAU |
| AND | THE QUEEN |
| Hearing: | 12 November 2013 |
Court: | Wild, Simon France and Asher JJ |
Counsel: | C Muston for Appellant |
Judgment: | 3 December 2013 at 10 am |
JUDGMENT OF THE COURT
AThe application for an extension of time to appeal is granted.
BThe appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
This Court is vexed with meritless appeals based on the alleged incompetence of trial counsel. This appeal is a particularly bad example. What the appellant here
overlooked is that the ultimate question is whether justice has miscarried. So the focus is on the outcome.[1]
[1]Oliver v R [2007] NZCA 326 at [44] citing Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.
Where, as here, asserted errors on the part of trial counsel are relied on, there are two steps. First, to consider whether there was in fact an error on the part of trial counsel. Secondly, if there was error, to consider whether there is a real risk that error affected the outcome.[2]
[2]Sungsuwan v R at [70].
As to the first of these steps, an appellant contemplating this type of appeal must acknowledge the dynamic, constantly changing nature of a criminal trial. The case law acknowledges that defence decisions need to be reviewed as the trial progresses, and may change. The important decision whether or not to call defence evidence is the obvious example. Looking back, with the benefit of hindsight, it can often be argued that a different decision would have been preferable. That does not make the decision taken unreasonable or erroneous in the circumstances in which trial counsel made it. Other decisions may need to be made “on the run”, based on an on the spot assessment of how matters stand. The decision whether to cross-examine a prosecution witness, or whether to ask further questions, is an example. Again, with the benefit of the answers the witness gave, it can often be argued that trial counsel erred in asking too many questions, or even in asking any. But, again, it does not follow that the decision trial counsel made on the spot was unreasonable or wrong.
As to step two, Sungsuwan emphasises the appellant must establish a “real risk” or “real concern” for the safety of the verdict.[3] The way Tipping J summarises the position in his judgment in Sungsuwan provides practical guidance:
[116] It is appropriate to emphasise that this approach should not be regarded as giving the appellant the ability to speculate on what the outcome might have been if different tactical or other decisions had been made, or different advice had been given by counsel as to the content or presentation of the defence. Nor should the appellant be able to rely on speculative points to impugn counsel’s advice which he has accepted or acquiesced in at the time. The appellant must establish a real as opposed to a speculative risk of an unsafe verdict and must show that the impugned conduct of counsel has clearly caused that risk. If, as in this case, there was potential for both advantage and disadvantage to the appellant in a course which he claims counsel should have taken, the reality of the risk to the verdict must be assessed with both those aspects in mind.
Factual background
[3]At [70], [110] and [115].
The appellant was one of a number of people at a gathering at a residential address in Awakino Street in Dargaville on the evening of 8 October 2009. Those present, including the appellant, had been drinking.
The appellant went in his car to buy more beer. Outside the liquor shop he met the victim, Mr Jessie Dick. Mr Dick was waiting for takeaways, and his two year old daughter was sitting in the back seat of his car. One of the two men challenged the other to a fight, and the challenge was taken up. The appellant drove back to the Awakino St address and Mr Dick followed. The appellant drove up the driveway. Mr Dick arrived in his car shortly afterwards. He parked on the road and walked towards the driveway. He was confronted by three or four men, some of whom were carrying weapons. Mr Dick retreated and invited the men to put down their weapons. The back windscreen of Mr Dick’s car was smashed. Because his young daughter was in the back seat, Mr Dick hurried back to the car and attempted to drive away. He was then attacked by at least two men armed with weapons such as wheel braces while he was trying to start the car. They inflicted serious injuries to Mr Dick, including to his skull and jaw.
When the police arrived at the scene three men were standing on the driveway with blood on their hands or clothing or boots. They were the appellant, T and Mr Arthur Fenton.
T admitted to the police that he had hit a man with a metal bar. T, then aged 15, was dealt with in the Youth Court.[4]
[4]Co-offender T has been anonymised to preserve the anonymity of persons appearing before the Youth Court under s 438 of the Children, Young Persons, and Their Families Act 1989.
In January 2010, from photo montages, Mr Dick identified the appellant and Mr Arthur Fenton as two of the men who had attacked and injured him. Mr Clayton Barnes identified the appellant as one of the men who were at the scene of the attack. Mr Barnes knew the appellant. He had observed events sitting in his car which was parked on the road, a few metres in front of Mr Dick’s car.
Mr Fenton and the appellant were tried together in the District Court at Whangarei in September 2012. Each was charged with wounding Mr Dick with intent to cause him grievous bodily harm, Mr Arthur Fenton also with threatening to kill Mr Dick.
The essential defence of both men was that their identification as assailants was mistaken. Mr Fenton ran a cutthroat defence: he pointed the finger at T and the appellant as the two assailants.
The Judge discharged Mr Fenton at the end of the Crown case. It had emerged that Mr Dick’s identification of Mr Fenton was tainted to the point of unreliability, and the Judge ruled that the balance of the evidence was insufficient for the case against Mr Fenton to be left to the jury.
Although the appellant accepted that he had met Mr Dick at the liquor shop earlier in the evening and was at the address when Mr Dick was attacked, he asserted that he was a witness to and not a participant in the attack. He relied on a statement he had made to the police on 26 May 2011 and elected not to give or call any evidence. The jury found him guilty and he was sentenced by Judge McDonald to six and a half years imprisonment.[5]
Extension of time
[5]R v Manukau DC Whangarei CRI-2010-088-684, 22 November 2012.
The appeal was filed 20 days out of time. The delay was short. We grant an extension of time for the appeal.
Grounds of appeal
On behalf of the appellant, Mr Muston advances four points:
(a)that trial counsel failed to take adequate instructions;
(b)that the cross-examination of the victim by trial counsel was inadequate;
(c)that trial counsel should have challenged the evidence of Crown witness Mr Barnes; and
(d)that trial counsel erred in his advice to the appellant about the dangers of calling defence evidence.
Failure to take adequate instructions
The nub of this point was that the appellant’s video interview of 26 May 2011 was not an adequate instruction for trial counsel. In particular, it lacked clarity as to who was involved in the attack on Mr Dick. Trial counsel should have asked the appellant to tell him in detail what happened.
For two reasons we see nothing in this point. First, trial counsel did not rely solely on the appellant’s video interview as a basis for his instructions as to what had happened. Mr Garbett took the brief over from earlier counsel in January 2012. In an affidavit he swore in relation to this appeal, Mr Garbett stated that he discussed the case with previous counsel when the transfer occurred, and was told that the defence was that the appellant “was there but not involved in any bashing”, and that there was a full videotaped police statement.
Mr Garbett then deposed as follows of his first meeting with the appellant, following a callover on 10 February 2012:[6]
6.In the course of our discussion I followed my normal practice which was to discuss the charge, maximum penalty, Crown evidence against him and nature of his reply and seek his instructions. The appellant had been given the Crown briefs and disclosure by his previous counsel. He confirmed that his reply was contained in his police statement.
(Our emphasis.)
[6]Affidavit of Richard Saunders Garbett, sworn 17 September 2013.
When cross-examining Mr Garbett, Mr Muston did not question let alone challenge Mr Garbett on his evidence that he had discussed with the appellant the Crown’s evidence against him. That is probably because, cross-examined by Ms Inwood, the appellant had earlier accepted that he had been provided with copies of the statements of evidence by the proposed Crown witnesses, in particular those of Mr Dick and Mr Barnes.
So there is no evidentiary basis for this point.
The second reason is that this point proceeds on the basis that Mr Manukau could give a reliable account of events and his part in them. This is the account proffered to the Court in the form of an affidavit sworn by Mr Manukau on 25 August 2013. But this overlooks the evidence at trial as to Mr Manukau’s condition at the relevant time. In his evidence Detective Bailey described Mr Manukau as “very intoxicated” when the police arrived at Awakino Street.[7] After taking T to the police station, Detective Bailey described returning to Awakino Street about 20 minutes later. Mr Manukau then agreed to accompany him to the police station, as did Mr Fenton. The detective stated:[8]
… Once we got to the station it was quite clear that both of them were far too intoxicated really to be spoken to.
As a result, he told Mr Manukau he could go, which he did.
[7]Notes of evidence at 122/8 [NoE].
[8]NoE at 123/10–25.
Mr Muston categorised the appellant’s videotaped statement to the police of 26 May 2011 as “all over the place …waffly”. Given that, and that the appellant was too drunk to be interviewed by the police at the time, we see no force in Mr Muston’s submission that Mr Garbett failed to take a detailed account of events from the appellant.
Inadequate cross-examination of the complainant, Mr Dick
In his evidence at trial Mr Dick said he knew one of the men who had spoken to him outside the liquor shop about having a fight, and said his name was Karauna. He identified Karauna and also “the young guy” who had been the passenger in Karauna’s car as two of the three people who came out of the driveway at the Awakino St address, both of them with steel bars in their hands. He described the third man as “a big guy, Maori, old guy” who had a bar and said “I’m gonna kill you”. Mr Dick was first cross-examined, at length, by counsel for Mr Fenton. The focus of his cross-examination was obviously on the alleged involvement of the older Māori man. But Mr Watson got Mr Dick to confirm that two of the attackers were the men who had been in the car at the bottle store earlier in the evening – the appellant and the 14 to 15 year old Māori boy.
Mr Garbett, in cross-examining Mr Dick, dwelt on the suddenness and intensity of the attack, picking on parts of Mr Dick’s initial statement to the police such as “… but the attack happened so fast it was a bit of a blur”. He also highlighted inconsistencies such as Mr Dick saying at one point that he saw three men running towards him and at another point stating that it was four men. Right at the end of Mr Garbett’s cross-examination there was this exchange:[9]
QYou at the same time you were desperately trying to get out of there weren’t you?
AYep.
QQuick as you could?
AYes.
QDo you think you might be trying to blame Karauna Manukau for that as a way of trying to get back at him?
ANo.
QIt didn’t really happen that way at all?
ANo.
[9]NoE at 61/21–30.
Mr Muston submitted that this was a token challenge only to the Crown’s key witness, and that Mr Garbett should have persisted with further questions, putting it to Mr Dick in “no uncertain terms” that the appellant was not one of the people who had attacked Mr Dick. He suggested that Mr Garbett should have put it to Mr Dick that the appellant was not one of the attackers, but was only watching from the driveway. And that the attackers were some of the other people who were at the gathering at the Awakino St address.
We reject this criticism. We have already pointed out that Mr Dick had identified the appellant as one of the men who attacked him. He had said he knew the appellant. He had identified the appellant as the man he had had the exchange with outside the liquor shop. In cross-examining Mr Dick, counsel for Mr Fenton had gone over those points again, obviously with the aim of diverting attention away from Mr Fenton.
Given that, we are in no doubt that the type of further questioning suggested by Mr Garbett would have served only to reinforce Mr Dick’s identification of the appellant as one of his attackers.
Having attempted to lay the groundwork as best he could, Mr Garbett suggested to Mr Dick that he might be mistaken about the appellant’s involvement. “No” was the response. Curtailing the cross-examination at that point was a fair decision. We certainly cannot view it as an unreasonable one.
No challenge to Mr Barnes
In his evidence in chief Mr Barnes said he thought he saw “about four” people chasing Mr Dick who was running back to his car. He identified one of those people as the appellant. He said he knew the appellant and gave his name – Karauna Manukau. He then said that he saw “two I think” of the four people with weapons, and identified T as one of the two.[10] He did not, at any point in his evidence in chief, say that he saw the appellant with a weapon, or saw him attacking Mr Dick’s car or Mr Dick with a weapon.
[10]NoE at 154/14 and 24–30.
Mr Garbett’s cross-examination of Mr Barnes was brief. The critical questions and answers were:[11]
[11]NoE at 168/24–169/6.
QAnd that’s when you say you saw four people running in the direction of Jesse Dick’s car, is that right?
AYep.
QAnd then one of those people went to the front window and hit it with some item, is that right?
AYep.
QAnd another one of those people went to the driver’s window and was hitting in there with some item, is that right?
AYep.
QNow, the person who was hitting the front window, I think you said that that was this older man, 40 or 50?
AYep.
QAnd the person you saw hitting through the driver’s window, was that [T]?
AI think – yeah I think so.
Mr Muston submitted that Mr Garbett’s failure to challenge Mr Barnes’ identification of the appellant as one of the people he saw chasing Mr Dick back toward his car effectively conceded the Crown case that the appellant was a party to the wounding of Mr Dick.
We do not accept that. First, the Crown did not suggest that it was enough to make the appellant party that he was on the driveway. In closing to the jury the prosecutor suggested that the evidence of Messrs Dick and Barnes established that the appellant was:
… out … there on the roadway … if he wasn’t wielding a weapon and if he wasn’t the one who was doing the damage himself, at least he was there, in the thick of it, assisting whoever it was who was successful in inflicting the serious damage on Jesse Dick …
In summing up Judge McDonald directed the jury that the Crown had to satisfy them that the appellant was out on the road. This is the direction he gave the jury:[12]
[24] Of course, and I will say this now at this point, Mr Manukau’s position through Mr Garbett is that he was never ever out on the road. When he arrived home and got out of his car, he stayed down with all the other people who might have been down at this function. He was never ever there, and if you think, “Yes, that’s what in fact happened”, he is not guilty. If you think, “Well, we don’t know whether that’s right or not or unsure”, he is not guilty. He has got to be out on the road doing something to assist the person who does hit, or he has got to be one of the two people who is hitting before you can find him guilty.
[12]R v Manukau DC Whangarei CRI-2010-088-684, 7 September 2012 (Summing up).
Secondly, in his closing address to the jury, Mr Garbett put much emphasis on the fact that Mr Barnes, who knew the appellant, had not identified him as one of the two people he saw carrying a weapon. He put it to the jury:
That attack was being made by one person and one person only and that’s, as [Mr Barnes] said, [T] …
That aspect of the defence case was well summarised by the Judge for the jury:[13]
… Mr Barnes, although he saw Mr Manukau on the road, did not have a weapon in Mr Manukau’s hand. In fact, Mr Barnes only had a weapon in [T]’s hand. Mr Barnes said that he saw [T], and only that young lad striking Mr Dick through the window. …
[13]At [34].
It is readily understandable why Mr Garbett avoided challenging Mr Barnes in the way suggested by Mr Muston. It risked sullying the very helpful answers he had got from Mr Barnes. Having got those answers, he did not want to discredit Mr Barnes, but wanted to leave the helpful answers he had given right there in the minds of the jury as credible evidence.
Error in advising the appellant about the dangers of calling defence evidence
In his affidavit in relation to this appeal Mr Garbett stated:
7.Then I made the enquiry as to whether the client wished to give or call evidence. I explained that if he presented evidence and the jury accepted it, or were left in doubt, he could be found not guilty, but if he or a witness made a mess of it, he could lose the case. On the other hand, if no defence evidence was given, and he lost, he might regret not giving or calling evidence. The decision was entirely a matter for him. The decision was one he would have to live with regardless of the result. We had the transcript of his police interview which he understood would be played as part of the Crown case but was not the same as evidence given on oath from the witness box. He did not want to call any other witnesses, including any of his mates who were there who I suggested he might want to call. He indicated a preference not to give evidence himself but wanted to think about that.
Given that advice, Mr Muston submitted that the appellant obviously would not have attempted to locate other people who had been there at the time of the attack on Mr Dick, and who might be able to corroborate the appellant’s account that he was only a spectator. He submitted that Mr Pomipi could and should have been called as a witness for the appellant at his trial.
Mr Pomipi swore an affidavit in this appeal and was cross-examined before us. His affidavit included these passages:[14]
14.Karauna Manukau was standing on the left hand side of the driveway by the gate near the trees next the driveway …. He was not saying anything. He took no part in the assault.
…
18.The Police did not come back to make any enquiries.
[14]Affidavit of Hamiora Ashley Harry Pomipi, sworn 16 August 2013.
Mr Pomipi told the Court he did not remember speaking to a police officer at all on the night of the incident. He accepted that he had been drinking since the afternoon with the appellant, who had gone out to get more drinks for the party. He accepted that he had never told the police what he claimed he had seen that night, despite knowing that the appellant had been charged with the assault on Mr Dick. He claimed he had been too scared, but then said it was because he had not known that the appellant was in jail. He seemed not to know that the appellant had told the police when interviewed that Mr Pomipi was one of the people fighting with Mr Dick.
Attached to Mr Garbett’s affidavit in relation to this appeal was a copy of an entry Constable Dhiman had made in his notebook on the night of the incident:
2214Pumipipi Hemiora Ashlee
[date of birth]
[address]
Dargaville
[occupation]
Pumipipi is very drunk and unable to give any information.
Having seen and heard Mr Pomipi giving evidence, we think a jury would not have found him a believable witness. Indeed, we are in little doubt the jury would have dismissed his evidence as untruthful and/or unreliable.
More generally, we reject Mr Muston’s criticism of Mr Garbett’s advice to the appellant about the dangers of defence evidence. Those dangers are well known and in no way did Mr Garbett exaggerate them. Had the appellant called evidence, and had the Judge directed the jury in the usual way about that evidence, the direction would not have negated the adverse impact of the appellant giving and/or calling evidence which the jury disbelieved or found unreliable.
Result
The application for an extension of time to appeal is granted.
None of the four points on appeal has succeeded.
The appeal is accordingly dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent