McNabb v Police

[2019] NZHC 1448

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2019-419-0002

[2019] NZHC 1448

BETWEEN

MARIE McNABB

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	24 June 2019
Appearances:	RAB Barnsdale for the appellant ASC Alcock for the respondent
Judgment:	25 June 2019

ORAL JUDGMENT OF JAGOSE J

Counsel/Solicitors:

Richard Barnsdale, Barrister, Hamilton Almao Douch, Hamilton

McNABB v NEW ZEALAND POLICE [2019] NZHC 1448 [25 June 2019]

[1]                 On 5 December 2018, after a judge-alone trial, Judge D C Clark in the District Court at Hamilton convicted Marie McNabb on one charge of breaching a protection order.1 Ms McNabb was ordered to pay witness expenses of $916.2

[2]Ms McNabb appeals on grounds:

(a)there was a miscarriage of justice because of trial counsel’s conduct, which may have prevented a successful defence being raised; and

(b)the Judge erred in her assessment of the evidence.

Although Ms McNabb formally also appeals her sentence, no submissions are addressed to that and, given the absence of any penalty, I disregard it.

Background

—the incident

[3]                 Ms McNabb was in a relationship with the complainant for 12 years. They separated in December 2015. Initially, the complainant had a protection order issued against him, in favour of Ms McNabb. This was discharged on 15 April 2016. A temporary protection order then was issued in favour of the complainant against Ms McNabb, on 28 April 2016.

[4]                 The complainant’s evidence was Ms McNabb had campaigned against him for some time. The incident giving rise to the breach occurred on 16 September 2016, when the company’s return of a call to its 0800 number was responded to with allegations of his methamphetamine use. As a result, the complainant was drug-tested, to negative results. Police identified the called number as Ms McNabb’s.

—procedural history

[5]                 Ms McNabb initially faced two charges, one of breaching the protection order and one charge of theft. The Judge heard them on 11 December 2017, dismissing the theft charge and adjourning the other for defence evidence to be led. After a variety of

1      Domestic Violence Act 1995, ss 19(1)(d), 49(1)(b) and 49(3).

2      Police v McNabb [2018] NZDC 25680 at [28].

adjournments, including Ms McNabb’s replacement of her trial counsel, trial concluded on 4 October 2018, the Judge reserving her subsequent conviction of Ms McNabb.

[6]                 Ms McNabb’s appeal was brought on grounds the Judge erred in fact and misapplied the law. On 13 April 2019, Duffy J adjourned its hearing to enable argument also of counsel error.

[7]                 Ms McNabb’s counsel, Richard Barnsdale, takes no issue with the Judge’s legal reasoning. But he says evidence relating to the complainant’s alleged drug use should have been put to relevant witnesses, and he disputes the Judge had sufficient evidence to attribute the original call to Ms McNabb.

Approach

[8]                 If I am satisfied these errors are made out, and there is a “real risk” the outcome of the trial was affected – “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong” – or trial was unfair or a nullity, I must allow the appeal on grounds of miscarriage of justice.3 Otherwise I must dismiss it.4

[9]                 If my own view on that question differs from the Judge, the Judge will have erred and the appeal must be allowed. But it is for Ms McNabb to show such an error had been made; I must take into account any advantages the trial judge may have had.5

Discussion

[10]So far as counsel error is relied on:6

… 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

3      Criminal Procedure Act 2011, s 232(2); Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [27], adopting Tipping J’s formulation in R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110], and [37].

4      Section 232(3).

5      Sena v Police [2019] NZSC 55 at [38].

6      R v Sungsuwan, above n 3, at [70].

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

[11]              If counsel’s error “effectively prevented the accused from presenting a defence”, qualifying prejudice will readily be found.7 Failure to follow instructions on a fundamental decision (such as advancing a defence) generally will give rise to a miscarriage of justice.8 But there is a distinction to be drawn between a failure to follow instructions on fundamental decisions, and a failure to follow instructions in making less fundamental decisions.9 On the latter, “a miscarriage of justice will generally only arise if the decision was not one a competent lawyer would have made and if what occurred may have affected the outcome”.10 It is not merely a question of whether counsel could have conducted the trial differently or reached a different decision.11

[12]              Under s 49(2) of the Domestic Violence Act 1995, reasonable excuse for breaching the protection order affords a defence to its breach. Evidence about the complainant’s drug use may have provided such a defence.

[13]              A third person’s affidavit, sworn on 5 December 2016, but said by Mr Barnsdale to be circulating in draft prior to that date, deposed to having known the complainant for about a year, as a well-known drug dealer and cook from whom the deponent purchased methamphetamine. The deponent was a family friend of Ms McNabb’s. Ms McNabb suggests she did not see the affidavit until after the hearing, although there is an email dated 20 October 2017 where she refers to “a sworn affidavit of a witness that was involved with [the complainant] … and others selling meth …”. Ms McNabb then said, “unfortunately the … police have decided that my witness is not reliable.”

7      R v Scurrah CA159/06, 12 September 2006 at [14].

8      Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [68].

9      At [69]–[77].

10 At [77].

11     R v Sungsuwan, above n 3, at [66]; see also S (CA88/2014) v R [2014] NZCA 583 at [16].

[14]              Ms McNabb’s original trial counsel, Sheila Cameron, says she met with Ms McNabb on 8 December 2017 to prepare for trial. Ms Cameron does not recall discussing the specific strategy for breach of the protection order charge. The affidavit was discussed, but she did not think it provided a ‘reasonable excuse defence’ as it arose after Ms McNabb’s breach, when she did not know of the affidavit. Moreover, the self-incriminatory nature of the evidence meant he could not be required to give it. And, last, the deponent was Ms Cameron’s former client; if Ms McNabb wanted to call the evidence, Ms Cameron perceived she would need to withdraw. During the trial, while Ms Cameron “forgot” to put propositions relating to his drug use to the complainant, she “felt the allegations were a little absurd given the complainant could point to two clean drug tests for methamphetamine.”

[15]              Failure to follow instructions where an accused person is deprived of the opportunity to advance a defence is a “fundamental matter” which almost inevitably results in an unfair trial.12 The focus on appeal is on whether, as a matter of fact there was a failure to do so. An ‘instruction’ is “a clear direction as to how the trial or an aspect of it is to be run”.13 Ms Cameron specifically says Ms McNabb did not instruct her to call the deponent as a witness.

[16]              Ms McNabb may have had a particular view on the matter, but that has to be distinguished from clear directions, which need to be observed and implemented by counsel.14 As a matter of fact, I am not persuaded there was any instruction on point. That still leaves if Ms Cameron erred in failing to put forward the evidence, and if such an error could have affected the outcome.

[17]              I accept the deponent’s evidence may have supported Ms McNabb’s allegations of the complainant’s drug use. But Ms McNabb herself said police thought the deponent was an unreliable witness. His affidavit only details the complainant’s alleged drug use until the end of 2015. When she made the 16 September 2016 call, eight months after their separation, Ms McNabb was relying only on her suspicions

12     Hall v R, above n 8, at [61].

13     R v S [1998] 3 NZLR 392 (CA) at 394.

14     At 394.

about him garnered from their relationship. Mr Barnsdale himself acknowledges “it may have been the case” her belief was speculative and of little weight.

[18]              Ms McNabb’s allegations also were unsolicited. The company’s customer service representative was provided with Ms McNabb’s cell phone number as someone wanting to talk about “public liability”. Presumably the object was to get to someone in the company who was concerned for its reputation. On her response to the company’s return of the call, Ms McNabb was insistent the complainant needed to be tested for methamphetamine use and specified the particular type of test to be used. The company had no reason to elicit the information: a few months earlier, in February 2016, the complainant had voluntarily provided a hair follicle sample for drug testing, which came back negative. The Judge had every reason to conclude the sequence of calls was initiated by Ms McNabb.

[19]              The ultimate issue in assessing a ‘reasonable excuse’ defence to breach of a protection order is:15

…whether an ordinary New Zealander would regard the communication as unreasonable in the circumstances; those circumstances include the existence of the order and the inherent vulnerability of the protected person to psychological abuse.

Ms McNabb and the complainant have a turbulent history, and were in a dispute about matrimonial property, and other matters, at the time. Ms McNabb had no reliable evidence of the complainant’s drug use, and there were his two voluntary drug tests to the contrary. In those circumstances, and the duplicitous instigation of the telephone call, a defence of reasonable excuse would have faced hurdles: if anything, it risked the opposite outcome; that Ms McNabb’s vindictive conduct was to aggravate the breach.

[20]              An appeal on grounds of counsel error arising out of a reasonable tactical decision in the context of the trial ordinarily will not be successful, even if the decision may have affected the outcome of the trial.16 In my view, Ms Cameron made a reasonable tactical decision in the circumstances not to pursue the drug issues with

15     P v Police HC Tauranga CRI-2005-463-000061, 7 December 2005 at [41].

16     R v Scurrah, above n 7, at [19].

[the complainant] and therefore not to call the deponent. In any event, while potentially endorsing Ms McNabb’s suspicions, the evidence did not address the crucial point, that Ms McNabb lacked foundation for her allegations. Thus there was no real risk the outcome of the trial was affected.

Result

[21]Ms McNabb’s appeals against conviction and sentence are dismissed.

—Jagose J