Otimi v R
[2012] NZCA 216
•29 May 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA496/2011 [2012] NZCA 216 |
| BETWEEN GERARD TEOI OTIMI |
| AND THE QUEEN |
| Hearing: 15 March 2012 |
| Court: O'Regan P, MacKenzie and Asher JJ |
| Counsel: M B Meyrick for Appellant |
| Judgment: 29 May 2012 at 3 pm |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed. The stay of sentence of home detention is revoked and the appellant must now serve the balance of that sentence.
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REASONS OF THE COURT
(Given by MacKenzie J)
Introduction
The appellant faced trial before Judge Andrée Wiltens alone in the District Court at Manukau in February/March 2011 on 48 counts of altering a document with intent to cause loss contrary to s 258(1)(a) of the Crimes Act 1961.[1] By a judgment delivered on 12 April 2011, the Judge convicted the appellant on 38 counts. Of the remaining ten counts, three were the subject of a s 347 discharge at the close of the Crown case on 9 March 2011, and the remaining seven counts were discharged under s 347 after the Crown accepted in its closing address that there was insufficient evidence on those counts. The appellant appeals against his conviction.
Crown case
[1] R v Otimi DC Manukau CRI-2009-092-12556, 12 April 2011.
The Crown case was that in mid June 2009 the appellant was involved in several very large public seminars held at maraes in Mangere, Papakura, and Hamilton. The attendees at these meetings were largely Samoans, Tongans and other Pacific Islanders. There were also smaller gathering at the home and office of a Ms Fuimaono in Otara. There were similar meetings at other addresses. The appellant was not present at all of those meetings. The common factor among attendees was that their valid immigration status or that of their relatives had lapsed.
The appellant spoke at some of these gatherings, through a Samoan interpreter. He told the audiences that he was concerned at the plight of Polynesian overstayers and expressed a desire to assist them. His offer of assistance took the form of adopting overstayers by a process the appellant described as “Whangai”; they would be adopted and thereby become part of his hapu, whanau and his whakapapa; this adoption would enable them to claim to be Maori and to receive a stamped endorsement on their passports authorising them to remain in New Zealand until 2018, and a hapu adoption certificate. The Crown case was that the audience was told that the stamp meant that neither the police nor immigration officials would be able to deport them.
Many attendees agreed to participate in the appellant’s scheme and paid the appellant, or an associate, $500 in cash. Their passports were stamped by the appellant, or one of his agents, and the endorsement was signed by Mr Otimi.
Grounds of appeal
In his written submissions, Mr Meyrick identified six grounds of appeal against conviction. He submits that there was a miscarriage of justice caused by one or more of the following:
(a)No offence was established by the evidence.
(b)The trial Judge made a wrong decision of law in finding that deception was not required to be proved.
(c)The trial Judge erred in allowing propensity evidence.
(d)The appellant was prejudiced in his defence to the extent there was a significant risk of a miscarriage of justice by his trial counsel arguing that deception was not a required element of the indictment and that the Crown should not take deception into account.
(e)The appellant was prejudiced in his defence to the extent that there was a significant risk of a miscarriage of justice by his trial counsel declining to call him as a witness against his instructions.
(f)The appellant was prejudiced in presenting a defence by the actions of the Ministry of Justice which appointed his counsel at such short notice that his counsel had insufficient time to prepare a defence, leading to a breach of s 24(d) of the New Zealand Bill of Rights Act 1990.
Grounds (a), (b) and (d): elements of s 258
Grounds (a), (b), and (d) are interrelated, in that all three grounds go to the elements of the offence under s 258(1)(a). We deal first with that issue.
Section 258(1) of the Crimes Act provides as follows:
Every one is liable to imprisonment for a term not exceeding 10 years who, with intent to obtain by deception any property, privilege, service, pecuniary advantage, benefit, or valuable consideration, or to cause loss to any other person,—
(a)alters, conceals, or destroys any document, or causes any document to be altered, concealed, or destroyed; or
(b)makes a document or causes a document to be made that is, in whole or in part, a reproduction of any other document.
The elements of the offence, so far as relevant in this case, were that the Crown was required to prove that the appellant had altered a document, and had done so with intent to cause loss to some other person. The Crown relied on the second mens rea limb of s 258(1). Thus it did not seek to prove intent to obtain by deception, but rather intent to cause loss.
The Crown case was that the actus reus of the offence, the alteration of a document, was in each case the signature by the appellant of a stamp placed in the complainant’s passport by the appellant or by some other person involved in promoting the “Otimi scheme”. The appellant, in committing that actus reus, intended to cause loss to the holder of the passport by requiring payment of $500, in circumstances where he had induced the holder, or was aware that others had induced the holder, to believe that the signed stamp in the passport would have value by improving the holder’s immigration status in New Zealand. It was the Crown case that each complainant was induced, by a mistaken belief as to the benefit to be derived from the signed stamp in the passport, to pay a fee or koha of $500 for the alteration of the passport by the insertion of the signed endorsement. It was not necessary to prove that the appellant had personally benefitted from the $500. The essential element was a loss to the passport holder, not a benefit to the appellant
The Crown case was that this “Otimi scheme” had become well known through word of mouth. The prosecution invited the Judge to infer that the complainants knew about the “Otimi scheme”, and that the documents, in particular the stamp on the passport, which was in all cases signed by the appellant, was sufficient to prove the case against the appellant without evidence of his personal involvement at all of the meetings.
Trial counsel for the appellant argued that the appellant should have been charged with obtaining by deception, contrary to s 240 of the Crimes Act. The Judge described himself as unconcerned with this submission, and that he looked instead at the charge that Mr Otimi faced and whether or not the prosecution had proved the essential elements of that charge beyond reasonable doubt. Mr Meyrick in his submissions on this appeal also referred to s 240. He noted the different maximum penalties for the two offences (seven years imprisonment for s 240 and ten years imprisonment for s 258). He submitted that it seemed incongruous that an offence requiring proof of a deception provided a lesser maximum penalty than an offence which did not require proof of deception. He further submitted that, under s 240, a defence of claim of right would have been available to the appellant.
Section 240(1) provides as follows:
Every one is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,—
(a)obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly; or
(b) in incurring any debt or liability, obtains credit; or
(c)induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or
(d) causes loss to any other person.
We do not consider it necessary to examine whether, on the Crown case, a charge under s 240 might have succeeded. It is not uncommon that a particular combination of facts may constitute an offence under more than one statutory provision. The selection of the appropriate charge is, in such circumstances, a matter for the Crown solicitor, under ss 345(1) and (2) of the Crimes Act. An indictment may be filed for any charge founded on the evidence disclosed in the depositions. We consider that the approach adopted by the Judge, namely to consider only whether or not the prosecution had proved the essential elements of the charges under s 258, and not to consider what the position might have been if the Crown had charged under s 240, was correct.
The relevance of deception
The next and related issue is as to the relevance of deception to proof of the charge under s 258. Mr Meyrick noted that it was common ground between the defence and the prosecution at trial that deception was not a factor that needed to be proved. The respective positions of the parties at trial on the relevance of deception was succinctly summarised by the trial Judge in these terms:[2]
[73] The prosecution maintained that, while deception was not an ingredient of the charges, I could still have regard to aspects of deception as being indicative of Mr Otimi’s state of mind at the time. Mr Thinn steadfastly refused to see the matter in this light – he maintained that deception was not an ingredient of the offences charged and that therefore I should have no regard to such matters. I determined that deception was not required to be proved as part of the charges against Mr Otimi, but that the Court could and should take into account all evidence pertaining to an [sic] his state of mind. His suggested deceptions were therefore relevant.
[2] R v Otimi DC Manukau CRI-2009-092-12556, 12 April 2011.
In this Court, Mr Meyrick submitted that deception is an element that needs to be proved, and that the intention to cause loss required by s 258 must be a dishonest intention. In general, a crime for which mens rea is an ingredient requires proof of a dishonest intent. The heading of s 258 (altering … documents with intent to deceive) makes it clear that the section requires proof on an intention to deceive.
The intent which must be proved, under the limb of s 258(1)(a) involved here, is an intent to cause loss. It was not sufficient for the Crown to prove the payment of $500 as a consideration for the alteration of the passport by the insertion of the signed endorsement. Payment of consideration for the making of an alteration to a document is not, of itself, a loss. Mr Meyrick gave the example of a person going to a solicitor’s office asking that entries be placed on a document, namely an application form for the purposes of an application to Immigration New Zealand, and the application form was altered by the solicitor placing a signature in appropriate places on the document, and a fee was charged. Mr Meyrick submitted that in those circumstances a document was altered by the solicitor, the client paid a fee and thus suffered a loss, and the loss was caused intentionally.
We do not accept that analysis. In that example, the payment of the fee did not result in a loss to the client. The client received value for the fee paid, namely, the provision of a service by signing the documents as required.
The Crown was required to prove an intent by the appellant to cause that loss. The Crown case against Mr Otimi was not that the payment of the $500 of itself constituted a loss. The Crown case was that the payment constituted a loss because the alteration to the passport was worthless and the passport holder did not receive the expected value in return for the $500 fee paid. In argument before us, counsel for the Crown, Mr Raftery, accepted that s 248 was a dishonesty offence and that the Crown had to prove that the accused person had caused a loss dishonestly. That required the Crown to prove that Mr Otimi was aware that the complainant had a false expectation as to the value which the signed endorsement would have, sufficient to induce the complainant to make a $500 payment, and that Mr Otimi did not honestly believe that his actions in altering the passport would give the complainant the benefit which the complainant expected to receive, in return for the $500 payment.
The Judge’s findings
The Judge described his findings on the issue of deception (which apply equally to dishonesty in the sense outlined above) in the following terms:
[89] The entire “Otimi scheme” was cloaked in a veneer of legitimacy. The “Otimi stamp” and the various certificates were made to look as official and legitimate as possible, and therefore steeped with the necessary authority. However, on closer inspection, the “Otimi stamp”, as described, is anything but official or legitimate. By dint of his previous convictions, Mr Otimi must be taken as having known that at the relevant time.
[90] Mr Otimi’s oral statements to the overstayers about their immigration status being affected by their being adopted, and their passports being stamped, are equally facile. Again, Mr Otimi knew that, and all his protestations to the contrary and his claims to justify otherwise are not credible.
[91] Mr Otimi may well be the head of his hapu. However, that does not and cannot give him the power or authority to deal with the travel documents of other sovereign nations. He was attempting to usurp the function of a government department. He had no ability to do that. All pretence to the contrary was mere puffery.
[92] These matters all lead to an inevitable conclusion that Mr Otimi intended the complainants to lose their $500.
The Judge approached the matter on the basis that the complainants’ testimony could not sensibly be individually weighed and this was accepted by trial counsel for the appellant who urged the Court to come to a collective view of the evidence of the complainants. Adopting that basis, the Judge found that the complainants were witnesses whose testimony could be safely relied upon as to accuracy and impartiality. He said:
[22] Having carefully scrutinised all these complainants, the one constant was the uncertainty and lack of understanding of what was involved in Mr Otimi’s scheme. Each of the complainants displayed this lack of knowledge, and more significantly, a lack of appreciation of the consequences for them and their loved ones. The chance, that what was being offered might just work, proved to be more than enough for them to become involved.
He later said:
[99] Even if the stamp was only the first step in Mr Otimi’s scheme to assist complainants, the complainants were induced to believe that they had gained a significant benefit in terms of their immigration issues.
Our conclusion
We have reviewed the evidence on these aspects. The evidence of over 30 complainants indicates a considerable diversity in what complainants were told, or in what they understood from what they were told. We do not propose to set out that evidence in detail. It is clear that all of the complainants understood that they would receive some benefit to their immigration status from an endorsement of their passport. That understanding did not, in every case, extend to a belief that the endorsement would, without more, give a right to remain in New Zealand. Some accepted that the stamp in the passport was a first step but did not give a right to permanent residence in New Zealand. Some thought that the stamp made them part of the appellant’s hapu and that they would not be able to be deported.
The evidence did not establish that in all cases the belief which the complainants had in the effect of the scheme, and in particular the signed endorsement in the passport, was derived directly from statements by the appellant to the particular complainant. The Crown did not have to prove that. It was sufficient to establish an intent on the part of the appellant to cause loss that the appellant was aware that the complainant had an expectation as to the benefits to be derived from the signed endorsement in return for the $500 paid, which the appellant knew to be unjustified. It was not necessary for the Crown to prove that the unjustified expectation had been directly induced by a statement by the appellant to that complainant.
The Crown had to prove, as a necessary element of proving that the appellant intended to cause the complainants loss, and that the appellant did not himself believe that the complainants’ expectations were justified. The Judge dealt with the submissions of trial counsel on this aspect in these terms:
[103] Mr Thinn submitted that Mr Otimi genuinely held the belief that the “Otimi stamp” would protect passport holders from deportation until their permanent residency application had been considered by the Immigration Department. However, I needed evidence to substantiate that position – certainly I could take from his interview that he tried to make the “Otimi stamp” and the whole process as legitimate as possible, but other aspects of this submission were unsupported by the evidence.
Mr Meyrick submits that, in that paragraph, the Judge has reversed the onus of proof, by imposing on the appellant the onus of proving a genuinely held belief that the stamp would protect passport holders. We do not consider that the Judge has reversed the onus. The onus was on the Crown, in proving that the appellant was dishonest in the sense that he intended to cause loss, to negative the existence of an honest belief on the part of the appellant that the alteration of the passport would confer a benefit sufficient to mean that the payment of $500 would not constitute a loss. In addressing counsel’s submission that the appellant genuinely held such a belief, the Judge properly noted that there needed to be an evidential foundation for that submission. The Judge’s earlier findings in relation to the scheme meant that his conclusion that there was no evidential foundation for the existence of a genuinely held belief was clearly available to the Judge.
For these reasons, grounds (a), (b) and (d) of the grounds of appeal, as set out in [5], must fail.
Ground (c): propensity evidence
The next ground of appeal is that the Judge erred in allowing propensity evidence. At the end of the Crown case, and immediately prior to closing the case, counsel for the Crown signalled an intention to apply to lead propensity evidence. Counsel for the appellant opposed that application but sought time to consider the matter as he had no prior notice of the application. The Judge adjourned the matter until the following morning. At that stage the Crown did not immediately pursue the application. Counsel reserved his position and indicated that he might seek leave to reapply at a later stage. Counsel for the appellant did not oppose that course and the Crown case was formally closed. Counsel for the appellant then sought a short adjournment, and indicated that the appellant would not be giving evidence. Once that was made known, counsel for the Crown formally sought leave to reopen his case and make the propensity application. It was agreed that the application would be considered at a later stage, after some of the numerous defence witnesses expected to give evidence had been called. In a gap in the defence evidence, three days after the application had first been signalled, the Judge heard argument on the application. He delivered a decision on 17 March, ruling the evidence admissible.
The evidence which the Crown sought to adduce related to:
(a)the conviction of the appellant in March 2004 on two counts of dishonest use of a document to attain a pecuniary advantage, and the sentencing notes on that offending;
(b)notes of evidence from the trial which resulted in those convictions; and
(c)the record of those previous convictions.
The March 2004 charges related to an unofficial driver’s licence, and unofficial registration and warrant of fitness stickers displayed on a motor vehicle driven by Mr Otimi in 2003. The stickers purported to be issued by the appellant’s hapu.
In his ruling on the application, the Judge noted the general rules as to admissibility and exclusion in ss 7 and 8 of the Evidence Act 2006. He then went on to consider the propensity rules in ss 40 to 43 of that Act. As to whether the evidence was propensity evidence, the Crown submitted that the evidence demonstrated the appellant’s propensity to subvert the laws of Parliament with a parallel system of his own for the benefit of Maori largely but also extended to other Polynesian peoples, which might be described as invoking the sovereignty of his hapu.
The Judge was satisfied that the proposed evidence fell within the definition of propensity evidence as demonstrating a tendency to behave in a particular way, or have a particular state of mind. He considered that the proposed evidence had a high probative value in relation to the only issue remaining in dispute, namely the appellant’s intent, in that it showed that the appellant had previously offended in similar circumstances and in a similar manner. He considered the s 43 factors and concluded that the proposed evidence was likely to be highly probative. Weighing that probative value against the prejudicial value, he concluded that there was a low risk of unfair prejudice. He noted that the trial was a Judge alone trial and that the risk of jurors placing too much weight on the evidence was not present. He held that the remarkable similarity between the matters of which the appellant was convicted and with the charges was a compelling indicator of a consistent state of mind. He considered the admissibility of the proposed evidence on the appellant’s ability to present an effective defence and held that the appellant was well able to advance his defence of lack of intent to cause loss, coupled with his altruistic motives to all Maori and other Pacific Island peoples, despite the evidence being adduced.
The Judge in his ruling addressed the timing of the application in these terms:[3]
[43] The timing of the application caused me no concerns. Mr Thinn was initially embarrassed, but was given time to address the application. When the matter was first raised Mr Thinn mentioned concerns about the lateness of the application, given that the events in question had occurred in mid-2009, and that the prosecution case had been extant since then.
[44] There are no time limits for applications of this kind. Usually they are made pre-trial, but in view of the fact that the application was first raised during the prosecution case, no issue can be taken in relation to timing. There was no real suggestion of prejudice to Mr Otimi. Even if criticism can be levelled at the prosecution for not making the application at an earlier time, such should not affect the merits of the application.
[45] Mr Thinn also protested when the matter was first raised that this was a judge-alone case; and that the making of the application therefore resulted in a “cat-out-of-the-bag” situation having been created, which Mr Thinn felt inappropriate and unfair to his client. I commented on the fact that all admissibility of evidence matters were in the same situation – that the judge heard what the proposed evidence comprised before deciding whether or not to admit the evidence. The judge, if the proposed evidence was held to be inadmissible, simply had to ignore the proposed evidence.
[46] When the matter was raised again and the application formally made, Mr Thinn did not re-new this aspect. I took it that he accepted as correct what I had suggested. In any event, in my view his protestations were unfounded and could not be sustained. Judges are well versed in the act of ignoring certain considerations, and can be expected by members of the public to conduct themselves appropriately when called upon to do so.
[3] R v Otimi DC Manukau CRI-2009-092-12556, 17 March 2011.
Mr Meyrick submits that the 2003 incident related to a fact situation where the appellant and members of his hapu issued their own warrants of fitness to members of the hapu while the 2009 incidents, to which the charges related, involved a claim to an indigenous right to be able to act in the way that he did. Mr Meyrick acknowledges that, to that extent, the fact situations are similar. However, he submits that there is a significant difference between s 229A of the Crimes Act under which the 2003 charges were apparently laid, and s 258, in that s 229A requires proof of dishonest intent while s 258 does not. He submits that the admission of the previous convictions as propensity evidence was not justified when the legal tests for the two sets of charges is different.
As we have already discussed, the Crown was required to negative the existence of a genuine belief on the part of the appellant that the signed endorsement might have some legitimate legal status so as to have some value to the passport holder. The probative value of the evidence was accordingly high. The differences in the ingredients of the two charges did not detract from that probative value. The Judge’s conclusion that the probative value outweighed any illegitimate prejudicial effect was right.
It is not clear why the application to adduce the propensity evidence was left to the late stage that it was. We do not think that any prejudice to the appellant has arisen from the timing of the application, or the manner in which it was dealt with by the Judge. The application was signalled before the close of the Crown case. Time was given to counsel to prepare for the hearing of the application. In the context of a Judge alone trial, we do not think that the way in which the application was made and determined gives rise to any risk of a miscarriage of justice.
Grounds (e) and (f): failure to call the appellant and time for preparation
The fifth ground of appeal is that there was a significant risk of a miscarriage of justice by the appellant’s trial counsel declining to call the appellant as a witness against instructions. The sixth ground of appeal is that the appellant was prejudiced in presenting a defence by reason of the short notice by which counsel was appointed and that his counsel had insufficient time to prepare a defence. Both of these grounds were the subject of evidence before us, adduced pursuant to a minute of this Court dated 23 February 2012. As the evidence related to both grounds of appeal it is convenient to address them together.
We heard evidence from both Mr Otimi and from his trial counsel, Mr Thinn. Both swore two affidavits, and both were cross-examined before us. We also had an affidavit from Detective Clearly, the officer involved in providing disclosure to the appellant who was representing himself through to the trial stage of the proceedings.
Mr Thinn’s evidence is that on 12 January 2011 he accepted instructions to appear as counsel at the trial due to commence on 14 February 2011. He attempted to contact the appellant by telephone and by calling at his address, and subsequently arranged an appointment for 7pm on 13 January. The appellant telephoned on that day to say he could not keep the 7pm appointment and that he would make contact on Monday, 17 January, to arrange another appointment.
Mr Thinn did not receive any further contact, so he telephoned the appellant on 19 January. The appellant advised him that he wished to retain another counsel (Mr Meyrick) and that Mr Thinn’s services were not required. On 21 January, Mr Thinn filed a memorandum with the Court, the Crown, and the Legal Services Agency, advising that the appellant would not retain him as counsel and seeking leave to withdraw. On 28 January Mr Thinn attended a telephone conference with the Judge and counsel for the Crown which Mr Meyrick also attended. Mr Meyrick sought an adjournment to address the issue of representation but that was declined. Mr Thinn was granted leave to withdraw if he did not receive authority to act by 5pm on 28 January. He did not receive such authority.
On 11 February, the appellant contacted Mr Thinn and requested that he represent the appellant at the trial due to commence on 14 February. He took initial instructions at that time. On 14 February he filed a memorandum advising the Court and the Crown that he had instructions to act as counsel at trial.
On 14 February Mr Thinn appeared and sought an adjournment of one week to prepare. That application was not opposed and was granted. The trial was scheduled to commence on 22 February. Mr Thinn made inquiries regarding disclosure and was advised that all disclosure had been served on the appellant personally. He uplifted the disclosure documents which were not kept in a very organised fashion. He obtained some witness statements, which he could not locate from the police and at the commencement of the trial on 22 February, the Crown counsel gave him a copy of three Eastlight folders prepared specifically for the trial. Mr Thinn said that, although this material was voluminous, the witness statements were largely repetitive which made analysing the material reasonably straightforward. Mr Thinn considered he was in a position to commence the trial on 22 February.
There were also several adjournments during the trial to allow him to further prepare the defence case. The trial was adjourned from the afternoon of Thursday, 24 February, to recommence on Tuesday, 1 March. Mr Thinn was advised by the appellant of a family bereavement and sought a further adjournment. The trial was adjourned until 7 March. The Crown evidence (apart from the propensity evidence referred to) ended on the afternoon of 9 March and Mr Thinn sought time to prepare defence evidence which was granted, initially until Friday, 11 March, subsequently extended to Monday, 14 March. The defence evidence was called on 14 and 15 March. Mr Thinn said:
27.All in all not withstanding the earlier difficulties with this matter, due to the time given to me prior to and during the trial, I believed I was prepared, at least to the minimum professional level required, to present the appellant’s defence.
Mr Otimi, in his first affidavit, notes that Mr Thinn accepted the assignment at very short notice. He says that there were many Eastlight folders (he says about ten) delivered at the start of the trial and that Mr Thinn cannot have had time to go through these and prepare for the trial. Mr Otimi also says that he wanted to tell the Court of his concerns for the persons involved and that it was important for him to have his say and tell his story. He says that he should give evidence but that Mr Thinn brushed him aside. He said:
24.I never did give evidence to the court. That was Mr Thinn’s decision. I wanted to give evidence. I wanted to tell the court who I was – and where I was coming from. I wanted to tell the court why I did what I did and what I wanted to achieve. I told Mr Thinn as forcefully as I could to put me in the witness box. For some reason he was completely opposed to it. He said I would not give evidence.
That affidavit was sworn on 8 February 2012. He subsequently swore a second affidavit, undated, in which he reiterates that the decision not to give evidence in Court was Mr Thinn’s decision.
Mr Thinn swore a second affidavit, following an extension of the original waiver of privilege by Mr Otimi. In it, he says that at no stage did he prevent Mr Otimi from giving evidence and that the decision not to give evidence was Mr Otimi’s. He says that in the week before the trial started they discussed whether Mr Otimi would give evidence and his (Mr Thinn’s) advice was that he thought it was not a good idea. Mr Thinn became aware of Mr Otimi’s 2003 convictions and his advice was that, should Mr Otimi give evidence it was highly likely that the prosecution would be allowed to cross-examine him on that previous scheme. Mr Thinn deposes that at that stage Mr Otimi decided he would not give evidence but would rely on his witnesses to present his defence. Mr Otimi remained of that view at the end of the Crown case and did not change that stance even after the propensity evidence argument. He says that it was not discussed in depth at any stage after the initial discussions but Mr Otimi indicated that his decision was as before and remained unchanged. Mr Thinn deposes that the application to admit propensity evidence did change things from his point of view but it did not change Mr Otimi’s stance.
Mr Thinn notes a comment to him by Mr Otimi after cross-examination of one defence witness to the effect that Mr Otimi was glad that he had decided not to give evidence, after seeing the cross-examination in question. On the question of the propensity evidence, Mr Thinn deposes that he would have much preferred that this had been sorted out on a s 344A basis before trial but accepted that the Crown had not decided to use that evidence until he started revealing the defence line during his cross-examination of prosecution witnesses. Mr Thinn says that had the appellant changed his mind and said that he wanted to give evidence, he would have sought to have him called and had no doubt that the Judge would have allowed him to call Mr Otimi out of turn.
Mr Thinn was asked whether he had obtained a written acknowledgement by Mr Otimi that Mr Otimi had chosen not to give evidence. He said he had not as his practice was to do this only if the accused person’s decision was contrary to his advice.
Mr Thinn agrees with an assertion by Mr Otimi in his affidavit that Mr Thinn did not wish to run a Maori sovereignty argument. However he denies that he was dismissive of that in the way that Mr Otimi deposes and says that he explained to Mr Otimi that the matter had been raised with Judge Lovell-Smith at an earlier hearing and that she had ruled against Mr Otimi. Mr Thinn felt able to argue that the United Nations Declaration on the Rights of Indigenous People, although not ratified by New Zealand until 2010, could be raised as having some persuasive or moral value that the Judge might take into account and says that Mr Otimi was happy that he should deal with matters in that way. Mr Thinn says:
23.Put shortly I tried to make sure that everything Mr Otimi wanted said that could properly be said in his defence was either said or put before the Court, albeit I had reservations about the relevance or value of some of those matters.
In cross-examination before us, Mr Thinn reaffirmed that he considered that he had adequate time to prepare, and that the decision not to give evidence was Mr Otimi’s.
In the light of the evidence, including all of the affidavits and the cross-examination before us, we are quite satisfied that the decision not to give evidence was Mr Otimi’s. We prefer Mr Thinn’s evidence on this issue. It is implausible that Mr Thinn would have acted contrary to Mr Otimi’s instructions on an issue like this. Mr Otimi appears to us to have a forceful personality and we consider it equally unlikely that he would have allowed Mr Thinn to override his instructions.
We are also satisfied that much of the responsibility for the delay in instructing Mr Thinn rests with Mr Otimi. We are further satisfied that in all the circumstances, and having regard to the very considerable steps which the Judge took to accommodate the proper presentation of the defence case by adjournments during the course of the trial, there is no risk of a miscarriage of justice on the basis that Mr Thinn did not have adequate time to prepare the defence. In that respect, we accept Mr Thinn’s clear evidence that he did have sufficient time to prepare, as against Mr Otimi’s assertions to the contrary. Both of these grounds of appeal fail.
Conclusion
For those reasons, the appeal against conviction is dismissed.
The original notice of appeal included an appeal against the sentence of 18 months imprisonment with leave to apply for home detention, which was subsequently granted. When this appeal was first scheduled to be heard on 23 February 2012, it was adjourned because of the issues of trial counsel competence, raised at a very late stage. In a minute dated 23 February 2012, this Court suspended the sentence of home detention pending the outcome of the appeal and noted Mr Meyrick’s confirmation that the appellant did not pursue any appeal against sentence. The appeal against sentence is accordingly formally dismissed. The stay of that sentence pending appeal is revoked. The appellant must now serve the balance of the sentence of home detention.
Solicitors:
Berman and Burton, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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