R v E CA62/03
[2003] NZCA 405
•29 August 2003
PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND
CA62/03
THE QUEEN
v
E
Hearing: 19 August 2003
Coram: Gault P
Rodney Hansen J Salmon J
Appearances: W C Pyke for Appellant
G C De Graaff for Crown
Judgment: 29 August 2003
JUDGMENT OF THE COURT DELIVERED BY GAULT P
[1] The appellant faced trial on an indictment containing 21 charges. He pleaded guilty to 11 of the counts. A jury in the District Court at [X] found him guilty of a further six offences, but acquitted him on the remaining four. The appellant now appeals against his convictions on eight of the counts, including four to which he pleaded guilty. All of those under appeal were offences of violence against the appellant’s partner (V). The following table summarises the charges and their
outcome.
R V E CA CA62/03 [29 August 2003]
CHARGE DATE PLEA RESULT APPEALS 1. Assault on V with knife Dec 1998 Not guilty Acquitted - 2. Assault on V Jan 1999 Guilty Convicted – 18
months in prison
- 3. Assault on V April 1999 Guilty Convicted – 18
months in prison
Yes 4. Injured V with intent to
injure
April 1999 Not guilty Convicted – 3 years
prison
- 5. Assault on V with intent to
sexually violate
April 1999 Not guilty Acquitted - 6. Wounded E with intent to
cause grievous bodily harm
17 Nov 1999 Not guilty Convicted – 6 years
in prison
- 7. Assault on V with bottle July 2000 Not guilty Acquitted - 8. Breach of protection order
by hitting V
July 2000 Guilty Convicted – 18
months in prison
Yes 9. Assault on V 5 Aug 2000 Guilty Convicted – 18
months in prison
- 10. Breach of protection
order by striking V
5 Aug 2000 Guilty Convicted – 18
months in prison
- 11. Assault on V with motor
vehicles
9 Sept 2000 Not guilty Convicted – 2 years
in prison
Yes 12. Breach of protection
order by threatening V
9 Sept 2000 Guilty Convicted – 18
months in prison
Yes 13. Wounding V with intent
to cause grievous bodily harm
21 Dec 2001 Not Guilty Convicted – 6 years
in prison
Yes 14. Breach of protection
order by physical abuse
21 Dec 2001 Guilty Convicted – 18
months in prison
Yes 15. Threatened to kill V 21 Dec 2001 Guilty Convicted – 5 years
in prison
- 16. Assault on V 11 May 2002 Guilty Convicted – 18
months in prison
- 17. Injured V with intent to
cause grievous bodily harm
11 May 2002 Not Guilty Convicted – 5 years
in prison
- 18. Breach of protection
order by injuring V
11 May 2002 Guilty Convicted – 18
months in prison
- 19. Sexual violation of V by
rape
11 May 2002 Not guilty Convicted – 12
years in prison
Yes 20. Sexual violation of V by
rape
11 May 2002 Not guilty Convicted – 12
years in prison
Yes 21. Breach of protection
order by possessing rifle and shotgun
13 May 2002 Guilty Convicted – 18
months in prison
-
[2] Over the period covered by this indictment the appellant was the subject of other complaints to the police by V which resulted in further convictions on three occasions. Plainly the relationship was a violent one. That was not denied by the appellant. His partner obtained a protection order in 1999 and breaches of this led to two earlier convictions as well as to six of the offences to which guilty pleas were entered.
[3] In the course of the evidence at the trial, the complainant described incidents which gave rise to the multiple charges. Therefore, evidence was given in relation to matters to which the appellant had pleaded guilty. That was inevitable where there were separate charges of breach of the protection order and of violence in respect of the same incident.
[4] There was no summary of facts at the time the pleas of guilty were entered on arraignment. A summary was prepared after trial and used as the factual basis for sentencing. Those are the facts we set out in respect of the offences to which the present appeal relates.
The facts
[5] Count 3 arose out of a series of events in April 1999. The appellant and V went to a tavern in [K] where the victim spoke briefly with the appellant’s brother-in-law. The appellant accused her of “chatting him up”, and slapped her across the face. She left the tavern to walk to her parents’ house, but the appellant pulled up in a car beside her. He asked her to drive him home and she got into the car. As V moved into to the driver’s side of the vehicle, she was allegedly kicked by the appellant in the hip and thigh area. The appellant pleaded guilty.
[6] Count 8 relates to an incident in July 2000. The appellant pleaded guilty to breaching the protection order. He had moved back in with V and the two were drinking in the house together one night. V went to bed alone, but when the appellant came to bed an argument ensued and the appellant slapped her.
[7] Counts 11 and 12 were related to events that occurred on 9 September 2000. The appellant and V were not living together at that time, but the appellant came over to her house and agreed to take her and the children to get some milk. As she tried to get the family into the car, the appellant reversed. Then as she and the children were walking back into the house they turned and saw the car driving towards them. The appellant eventually drove the car onto a tree stump at the front of the house, where it became lodged. The appellant pleaded guilty to breaching the
protection order by his conduct, but not guilty to assaulting the victim with the vehicle. The jury returned a guilty verdict in relation to the assault.
[8] Counts 13 and 14 arose out of an incident on 21 December 2001. The appellant and V went to a tavern, and during the evening V spoke to the appellant’s cousin. Upon returning home, the appellant accused her of being unfaithful, grabbed her by the throat and slapped her across the head several times. She scratched at his eyes so that he would let her go. At that point the appellant dragged her by the hair into the bathroom and took her by the throat, causing her to lose consciousness. He held her with her neck over the bath and put a knife to her throat. She tried to get the knife away from the appellant, but received deep cuts to her left hand. The appellant left the room and V ran to the back of the house. The appellant then chased and caught her, then rolled her onto her back and held a boning knife in front of her, threatening to kill her. V was dragged upstairs by her hair, but managed to remove the knife from the appellant. He then pulled her into the lounge and repeatedly punched her face and body. He said that if the police came he would kill her. He then located another boning knife and held it to her throat. He cut the side of her face and arms repeatedly. When V held up her hand to stop him, the appellant cut the webbing between two of her fingers. The appellant pleaded guilty to breaching the protection order on this occasion, but not guilty to wounding with intent to cause grievous bodily harm. The jury found him guilty of the latter however.
[9] Finally, counts 19 and 20 arose from what occurred on 11 May 2002, and were the most serious charges against the appellant. Again the appellant and V were at a tavern, and the appellant accused her of flirting and having an affair. The accusations continued when they arrived home, and the appellant punched her in the face. Then he told her to get into the car so they could go and confront the man whom the appellant believed she was having a liaison with. They drove to the other man’s house, but no-one was at home, so they returned to their own house. V refused to go inside if the appellant was going to beat her, but he threatened to do so on the street instead, then grabbed her hair and pulled her into the house. He then proceeded to beat and kick her. When the victim fell to the ground, the appellant kicked her and pulled her to her feet, and assaulted her further. The appellant pleaded guilty to the assault charges in relation to the beating, and does not appeal
against those convictions. But, as the victim lay exhausted on a mattress on the floor of the lounge, the appellant removed her clothing and had sexual intercourse with her. After that he began to assault her again. She was allowed to go to bed but the appellant followed her. He rolled her onto her back, removed her pants and underwear and had intercourse with her again. V returned his kisses hoping that he would think everything was alright, and would not hurt her again. The appellant was charged with sexual violation by rape for both instances. He pleaded not guilty on the basis that he reasonably believed the victim was consenting, but was found guilty by the jury.
[10] The sentencing Judge considered that the offending was of a very serious kind. He noted that the impact on the victim had been severe. Bearing in mind the totality of the offending, the Judge accepted that the appropriate range was between
12 and 14 years imprisonment. He gave some credit for the guilty pleas, but considered that this paled in significance in relation to the other offences that went to the jury. The sentence imposed for the sexual violation was 12 years, with lesser concurrent periods for the other offences. The Judge also imposed a minimum non- parole period of six years.
Appeal against conviction
[11] Mr Pyke for the appellant submitted that there has been a miscarriage of justice pursuant to s385(1)(c) of the Crimes Act 1961, and that this Court should quash the convictions under appeal and order a retrial. The basis for this submission was that the appellant’s trial counsel made radical and fundamental mistakes, and as a result the appellant was denied a fair trial: R v Pointon [1985] 1 NZLR 109 (CA). The two main complaints were of a failure to adequately prepare for trial and to brief the appellant, and a failure to properly explain the nature and particulars of the charges to which the appellant pleaded guilty. A late change of lawyer meant that the appellant only had one significant meeting with his counsel prior to trial. A brief of evidence was not prepared for the appellant, despite this Court reiterating the desirability of such practice in R v Riaz Ahmed (CA331/98, judgment 3 March
1999). These matters were set out in an affirmation made by the appellant and filed in support of his appeal.
[12] The indictment included particulars of each charge. It is apparent those particulars were intended to identify the incident or occasion to which the charge related. Count 3 charged male assaults female. The particulars given were: “Incident when the accused kicked the complainant in the car”. Count 8 charged breach of the protection order by physical abuse. The particulars (which were the same as those given for count 7) were: “Incident when the accused hit the complainant with a vodka bottle”. Count 12 charged breach of the protection order by threatening physical abuse. The particulars (which were the same as those given in count 11) were: “Incident when the accused drove a car at the complainant and children”. Count 14 charged breach of the protection order by physical abuse. The particulars (which were the same as those given for Court 13) were: “Incident when the accused slapped, punched, grabbed the complainant by the throat and stabbed her”.
[13] It is convenient to consider the convictions under appeal in two groups. The first relates to counts 3, 8, 12 and 14. Counsel submitted that the appellant mistakenly pleaded guilty to each of these because he had not been properly briefed on the subject matter of the charges. The appellant accepted from the outset that he had committed some acts of violence against the victim, and that was the reason for his guilty pleas. However, in his affirmation he stated that he was not aware of the particulars in the counts, which were not read to him when he was arraigned. In relation to count 3, the appellant gave evidence at trial in which he denied kicking the victim in the car in April 1999, yet he had already entered a guilty plea in respect of that charge. In relation to Counts 8, 12 and 14, the appellant testified that:
You only have to argue with someone that’s got a protection order against you and you have breached your protection order. So you know, anything from an argument to a slap, push, shove, punch, that’s breaching a protection order.
[14] It was argued that based on that understanding the appellant pleaded guilty to the breaches alleged in the three charges, without realising that the jury would view his guilty plea as an admission of the particulars, and that this would influence their deliberations in respect of the substantive assault and wounding charges. The appellant was acquitted of the charge in count 7 of assault with a vodka bottle, and in
those circumstances, it was submitted, if count 8 (arising out of the same events) had been left to the jury they would have acquitted.
[15] The second part of the appeal concerns counts 11, 13, 19 and 20. The submission in relation to these was that the lack of preparation by trial counsel resulted in the appellant being forced to guess what questions he would be asked during evidence in chief, and being taken by surprise by some questions under cross- examination. Trial counsel was clearly unsure of what the appellant’s answers would be, resulting in his evidence coming out in a disjointed manner. This was said to have reflected poorly on the appellant’s reliability and credibility, especially when counsel led evidence about charges that the appellant had already pleaded guilty to. Particular concern was raised about counsel’s treatment of the appellant’s evidence in relation to the rape charges. In his affidavit the appellant states that at the time of the alleged incident, he honestly believed that the victim was consenting to having intercourse with him. The victim admitted at trial that she told him she loved him to try to calm him down, and that she put her arm around him and kissed him. However, when questioned by his counsel about the incident, the appellant said “I reckon she brought the sex on to stop me from bashing her”. Mr Pyke submitted that the failure to brief the appellant meant that he thought he was being asked to speculate, as at the date of trial, why the victim had agreed to have sex with him. It was argued that the appellant had no appreciation of the significance of giving that answer.
[16] For the Crown, Ms De Graaff submitted that there is no evidence of a miscarriage of justice in this case. The Crown did not oppose the filing of the appellant’s affidavit, but (privilege having been waived) sought leave to put before the Court an affidavit from the appellant’s trial counsel.
[17] The Crown’s position was that the appellant chose to enter guilty pleas to the less serious counts in the indictment as a tactical move, in order to persuade the jury of his credibility. This approach was successful in relation to counts 1, 5 and 7, and the appellant cannot now be allowed to blame the adverse verdicts on his trial counsel. The fact that the appellant was acquitted on count 7 (assault with the bottle) despite pleading guilty to count 8 (breach of the protection order, with the particulars
mentioning assault with the bottle) was said to show clearly that the jury was not influenced by the appellant’s guilty pleas. Particulars specified in an indictment do not form part of the essential elements of the offence: R v Mead [2002] 1 NZLR
594. Therefore, it was argued, a guilty plea to a count does not invariably include an admission of the particulars set out below it. The Judge had explained to the jury in his summing up the essential elements that the Crown was required to prove beyond reasonable doubt and explained the function of particulars. The appellant’s own evidence established breaches of the protection order on all the occasions to which he pleaded guilty even if he disputed the exact nature of those breaches.
[18] As a result, Ms De Graaff submitted, this case does not give rise to the exceptional circumstances required to change a plea on appeal: R v Stretch [1982] 1
NZLR 225. It was accepted that if an appellant did not appreciate the nature of the charge, or did not intend to admit guilt on the charge, that can amount to a miscarriage of justice: R v L Forde [1923] 2 KB 400 (CA). But such instances of “mistake” are rare, particularly where an accused has had past experience with the criminal justice system as this appellant has.
[19] In relation to the remaining counts, Ms De Graaff submitted that there is no evidence that trial counsel, who was experienced in criminal trials, made any “radical errors” in the conduct of the appellant’s defence that could have resulted in a miscarriage of justice. Allowing inadequate time to prepare a defence, or failing to adequately present the defence case in cross-examination are examples of possible deficiencies. However, the threshold is high, and in this case trial counsel was not only adequately prepared, but he was able to secure acquittals on four charges. The lack of a brief of evidence is not crucial provided counsel had a firm grasp of the essential issues: S v R (1/02, judgment 31 May 2002). In response to the appellant’s complaints about his evidence in chief, Ms De Graaff pointed out that defence counsel are not entitled to “coach” an accused as to the correct answers to questioning from either side, and to do so constitutes a breach of counsel’s ethical obligations to the Court.
Decision
[20] We granted leave for the appellant and his trial counsel to be cross-examined on the conflicts in their affidavits. Having heard that evidence, we have been able to reach a decision on the appeal without difficulty.
[21] We deal first with the guilty pleas. It is possible to appeal from convictions following pleas of guilty, but where the pleas have been entered when the appellant was represented by counsel the convictions will not readily be overturned. There must be shown to be a miscarriage of justice. That may arise from failure to appreciate the nature of the charges, although the burden of establishing that when counsel’s advice was available is heavy: R v Stretch, R v Roycroft (CA312/01, judgment 4 September 2002).
[22] The affidavit of trial counsel, confirmed in his oral evidence, was that the pleas of guilty made by the appellant on arraignment came as a surprise to him. On the morning of the trial, counsel discussed with the appellant the various charges faced by him. Counsel made a note of the appellant’s comments on each of them. The appellant acknowledged that the notes were made in this way. Those hand- written notes record no indication of an intention to enter guilty pleas. In respect of count 3 the note records the appellant’s acceptance that he slapped the complainant around the head a few times including at the car, but a denial that he kicked her.
[23] In respect of the incident to which counts 7 and 8 relate, the notes record the appellant as accepting that they were arguing and that he slapped her three or four times. He maintained she was awake.
[24] With reference to the incident giving rise to counts 11 and 12 the appellant is recorded as acknowledging a breach of the protection order by arguing with the complainant and accepting that he was yelling at her.
[25] The notes recording the discussion of the incident referred to in counts 13, 14 and 15 include reference to grabbing her throat and slapping her (although in a context suggesting self-defence).
[26] The pleas of guilty to the charges of breach of the protection order are entirely consistent with these recorded comments made by the appellant shortly before he was arraigned (and acknowledged by him when he gave evidence at the trial). His complaint is not that he pleaded guilty to the charged breaches of the protection order by mistake. His complaint is that he did not realise he was pleading guilty to the particulars given for the respective counts in the indictment. But he did not do that. He pleaded to the charges, and on the evidence there has been no miscarriage of justice arising from that.
[27] In the summary of facts prepared for sentencing, and accepted on behalf of the appellant as reflecting the evidence given at trial, there is reference to kicking in the summary for count 3 but there is described other conduct clearly constituting the offence. There is no reference to use of a bottle in the summary for count 8. The acquittal on count 7 arising from the same incident is no reason to revisit the plea of guilty on count 8 to breach of the protection order which the appellant accepted was otherwise justified.
[28] The facts in the summary for counts 11 and 12 are combined. They include not only a description of the use of the vehicle but also the shouting of abuse and punching out the glass of a window, which facts fully support the separate charge of breach of the protection order by threatening physical abuse.
[29] It is quite apparent that the appellant knew the nature of the charges to which he pleaded guilty. He had been through the charges with his counsel that very morning and had indicated the extent to which he acknowledged the alleged conduct. He plainly decided himself, after his discussion with his counsel, to plead guilty to the less serious charges. He was sentenced on those charges without reference to the more serious conduct referred to in the particulars for the purpose of identifying the relevant incident (save for the kicking in count 3) which he says he denies but which would have had no significant impact on the sentence. We find no miscarriage of
justice in holding the appellant to his guilty pleas on counts 3, 8, 12 and 14. We are inclined to accept the submission by Ms De Graaff that these pleas probably were entered as part of a strategy which the appellant formed for his trial and that he should not now be relieved of the consequences.
[30] It was submitted that the entry of guilty pleas to the breach of protection order charges with the particulars given might have led the jury to assume the appellant had acknowledged his guilt in respect of the substantive and more serious charge arising from the same incidents. We do not accept that as likely. The Judge clearly directed the jury to consider each charge separately and plainly they did. They acquitted the appellant on count 7 charging assault in the same incident as gave rise to count 8 to which a guilty plea was entered. There were also acquittals on counts 1 and 5 which reflected a careful consideration of each charge by the jury.
[31] Accordingly we are not persuaded that the guilty pleas on the lesser charges affected the jury deliberations on the more serious charges arising out of the same incidents.
[32] We turn to the remaining counts; those on which the appellant was found guilty by the jury, counts 11, 13, 19 and 20. The appeal was advanced on the inadequacy of preparation by trial counsel. Trial counsel accepted the assignment to represent the appellant only a week before the trial when counsel previously assigned (who had replaced yet another counsel who had been assigned originally) was unable to continue.
[33] While represented by previous counsel the appellant had received all material disclosed by the Crown, and in his evidence at trial he acknowledged he had read this material. Once trial counsel was instructed he saw the appellant at the prison when the case was reviewed. It seems to have been accepted from an early stage that the appellant would need to give evidence. But no brief of his evidence was prepared. This was the primary ground of complaint. The appellant considers he did not acquit himself as well as he might have done had he been provided with a full brief of evidence.
[34] It is certainly desirable (generally essential) for a brief of evidence to be prepared for an accused who will or may give evidence: R v Ahmed. But it does not follow that failure to prepare such a brief leads inevitably to a finding of a miscarriage of justice: R v S.
[35] In this case a review of the Judge’s notes of evidence discloses that trial counsel had a good grasp of the appellant’s position on each of the charges. His cross-examination of the complainant was thorough and effective. When he came to lead the evidence of the appellant he, of course, had the notes of the discussion of each of the incidents made on the morning the trial started. When leading the appellant’s evidence counsel had the indictment placed before the appellant and took him through each incident by reference to the charges. We do not accept that some hesitancy by the appellant in giving answers to his counsel resulted from lack of preparation by counsel. Clients should also exercise a degree of diligence in preparing for trial. It is not counsels’ role to coach them in their evidence. The appellant was not a stranger to court processes. He had had all of the material for some months prior to the trial. He had had full access to the allegations his former partner would make, he well knew of the incidents in issue.
[36] Central to the complaint against trial counsel was the contention that, in the course of his evidence, the appellant gave an answer that was prejudicial to him on the most serious charges (rape) that he would not have given had his counsel properly prepared him to give his evidence.
[37] The appellant admitted that sexual intercourse occurred on the two occasions charged in counts 19 and 20. He acknowledged that both instances were preceded by a severe beating he gave to the complainant. He maintained, however, that the sexual intercourse was consensual or that he believed it was.
[38] In his evidence in chief, the Judge’s notes record the following questions and answers:
Q. And she says that you forced it on her? A. Yeah I know.
Q. What do you say?
A. I reckon she brought the sex on to stop me from bashing her. [39] This answer was expanded in cross-examination when he said:
I reckon, in my opinion, she brought the sex on to stop me from bashing her, yes. And that’s what I still think today.
[40] Trial counsel, in his evidence given in this Court, maintained that he had advised the appellant on the legal concept of consent. He said he told the appellant that consent obtained by violence or threat of violence is legally not a defence, not a consent. The appellant acknowledges he probably had advice about consent in relation to the rape charges.
[41] In his affidavit, and in his evidence before us, the appellant sought to explain his answers. He said he thought he was being asked to speculate at the time of the trial why his partner had sought sex. He did not appreciate, he said, that he was being asked about his belief at the time. That is contradicted by the answer he gave in cross-examination which clearly refers to both times. Short of coaching, we believe counsel would not have prevented this evidence even by a most thorough preparation. Certainly we are not persuaded that it is to be attributed to serious error on the part of trial counsel of a kind warranting interference with verdicts on appeal in accordance with authorities such as R v Pointon.
[42] For the reasons given the appeal against conviction is dismissed.
[43] Mr Pyke advised us that unless he was able to persuade us to set aside the convictions (or some of them) he could not argue that the sentence is excessive for the total offending. We agree. The sentence appeal also is dismissed.
Solicitors:
Crown Solicitor, Auckland
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