R v F CA203/03

[2004] NZHC 417

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA203/03

THE QUEEN

v

[P F]

Hearing:         23 March 2004

Coram:McGrath J John Hansen J Nicholson J

Appearances: G J King for Appellant

F E Guy for Crown Judgment:  31 March 2004

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1]                The appellant was convicted on 8 May 2003 in the High Court at Wellington on eight counts of sexual offending relating to three complainants. He appeals against those convictions. On 23 May 2003 he was sentenced to nine years imprisonment with a minimum non-parole period of five years.

R V [P F]  CA CA203/03 [31 March 2004]

The charges and verdicts

[2]                The three complainants are sisters, who are nieces of the appellant. The first three counts in the indictment charged the appellant with indecent assault, rape (a charge later amended to attempted rape) and digital penetration of J, the eldest of the complainants, on a single occasion between January and October 1997. J said that the appellant sexually assaulted her while she was asleep on a couch in the sitting room at her home. The alleged offending consisted first of the appellant placing his hand inside J’s underwear, feeling her vagina and moving his hand over her body and chest. This gave rise to the indecent assault count. She said that the appellant  had then removed his shorts, and her shorts, and inserted his finger into her vagina, this conduct giving rise to the charge of unlawful sexual connection by digital penetration. Finally he was said to have rubbed his penis over and around her vagina and into her vagina. That conduct was initially charged as rape but, at the conclusion of the Crown case, the Judge considered that the evidence of penetration was vague and contradictory and that the charge should be amended to one of attempted rape. The jury convicted the appellant of the indecent assault and the attempted rape charges, but acquitted him on the charge of sexual violation by digital penetration.

[3]                Counts 4 and 5 concerned an incident that probably took place during 2000 when the complainant J was aged about 8 years. She was staying at the appellant’s house and sleeping in a bedroom with a double bed alongside her two sisters. The appellant came into the room at a time when the three sisters were asleep and removed part of a blanket covering the complainant. He began to feel her buttocks and inserted his finger into her vagina. He then inserted his penis into J’s vagina.  The appellant left the room when J made a small noise. He faced charges of sexual violation by digital penetration and of rape in respect of these allegations and the jury convicted him on both.

[4]                Count 6 concerned J’s sister S. The allegation was that between 21 April 1997 and 21 April 2000, when S was aged between 7 and 10 years, the appellant indecently assaulted her. S was staying overnight at the appellant’s house and was asleep on a foldout couch with her brother. She awoke to find the appellant lying

beside her. He placed his hand inside her pyjama pants and then put it on her vagina. He rubbed the top of her leg and began kissing her on the neck and lips while she tried to roll out of his reach. He was convicted on the single charge of indecent assault.

[5]                Counts 7 to 9 concerned the youngest of the three sisters, D. They related to two separate incidents taking place between August 1999 and August 2001 when the complainant was aged 6 and 7 years. In the first D was sleeping on a bed in the appellant’s bedroom, with J. The appellant first approached J who got out of bed  and left the room. The appellant then rolled over on the bed towards D and began rubbing her chest and stomach before putting his hand through the front of her pyjama bottoms and touching her genital area. His hands remained there for a short period before D got up and ran into the sitting room.

[6]                On the second occasion the complainant was sleeping in a room, again on a bed with J. The appellant entered the room without any clothes on and approached J who got up and left. The appellant then put his hand down the complainant’s pyjamas touching her genital area. D immediately began moving around to try and make him remove his hand, and then she got up in order to leave the room. The appellant grabbed her and forced her back on the bed. He told her she had to keep what he had done secret or he would do it again. On one of these occasions D said that the appellant had rubbed his penis up and down on her bottom while she was lying in bed. As a result of these actions the appellant faced three counts of indecent assault on D. He was convicted on each by the jury.

[7]                The defence at the trial was that none of the incidents had occurred. Defence counsel contended that J had made up her version of the offending against her, and then encouraged her two sisters also to fabricate and make complaints against their uncle. Part of the defence was of the lack of opportunity for some of the offending  to occur, especially in relation to the complainant S. That offending was alleged to have occurred between 21 April 1997 and 21 April 2000. The appellant was in prison between 28 May 1998 and 1 March 2000. The appellant did not make a statement to the police concerning the allegations. He was convicted by a jury on all counts other than count 2.

[8]                Ten grounds for appeal against these convictions were advanced in this Court on behalf of the appellant, by Mr King who was not his counsel at the trial. We now deal with each.

Ground 1 – Cross-examination of witness on previous convictions Ground 2 – Putting character of complainants’ mother in issue

[9]                The appellant’s partner gave evidence in support of the defence. During cross-examination the Crown prosecutor put it to her that she was lying when she told the Court that she was certain J and S had not stayed at her home. She denied that.

[10]            She was next asked if she had lied in the past to help her partner, the appellant. She asked the prosecutor what was meant by that question.  The Judge  told the prosecutor to put a specific instance to the witness so she knew what the prosecutor was talking about. When the prosecutor then referred to a specific occasion in 1998 the defence objected to the line of questioning.

[11]            The 1998 matter concerned the conviction of the partner of being an accessory after the fact to a crime the accused had committed and of which he had been convicted. The Judge dealt with the objection by ruling that the Crown was entitled to question the witness, because the questions went to her credibility and also to her character, which the defence had earlier put in issue in the trial. The defence had earlier cross-examined the mother of the complainants along the lines that financial gain might be a motive for the complaints to the police. Defence counsel had also put to the mother that she and her husband had both been claiming the domestic purposes benefit while they were living together and that she had made a false declaration to the government department concerned.

[12]            Following the Judge’s ruling the prosecutor continued this line of cross- examination of the appellant’s partner. It concluded when the Judge told the prosecutor to stop, as the witness had admitted the conviction for assisting. When

defence counsel re-examined on the topic, the Judge intervened again to summarise her evidence by saying:

You helped him afterwards that’s why you pleaded guilty to what is called accessory after the fact.

[13]            During the course of the cross-examination of this witness there was also reference to the fact that the appellant went to prison in 1998. That fact had emerged earlier during the trial in the course of evidence of the partner when examined by defence counsel. He put to her that the appellant had been arrested on “an unrelated charge” in 1998, that it was “not a sexual offence”, and that “it had nothing to do with this case”. She agreed and also confirmed that the appellant was in custody as a result from 26 May 1998 until 1 March 2000.

[14]            These grounds of appeal have become entwined with the tenth ground which raises questions of incompetence of the trial counsel who conducted the defence. He has sworn an affidavit which makes clear that he did not anticipate that the appellant’s partner would be cross-examined on her previous conviction. We deal with whether what occurred amounted to radical error by counsel later in this judgment. No issue can be taken, however, with the Judge allowing the prosecution to cross-examine the witness D on her prior conviction. Cross on Evidence at para

9.49 says:

A party against whom a witness is called may impeach that witness in various ways…The party may cross-examine with regard to the witness’s discreditable conduct in the past, with a view to showing bad character. The witness may also be asked about his or her previous convictions or the existence of bias, and the party may prove either of these by other evidence if such are denied.

[15]            This common law principle has been given legislative effect in the case of prior convictions for indictable offences (which includes that of the witness concerned in the present case) by s12 of the Evidence Act 1908. The applicability of this principle to defence witnesses was pointed out by this Court in Williams v R CA448/02, 12 June 2003.

[16]            The real complaint Mr King makes concerning the conduct of the trial by the Judge under this head concerns the manner and extent of questioning that was

allowed, and the Judge’s interventions which we have referred to. Mr King submitted that the Judge had effectively invited the Crown to put the prior conviction of the witness to her. He also said that the Judge had allowed a line of cross- examination that was unfair and highly prejudicial to the accused. He had by his interventions given emphasis to the accused’s own previous conviction in 1998 both by explaining what the offence of accessory after the fact amounted to, and when he said the witness had admitted the conviction for assisting. The effect, according to Mr King, was to send a message to the jury about the appellant’s bad character in a situation of great difficulty for the defence.

[17]            We see nothing unfair in the way that the Judge intervened as the prosecutor was putting to the appellant’s partner that she had previously lied to help the appellant. By telling the prosecutor to ask a precise question the Judge avoided an emerging problem from the witness being confused as to what previous conduct of hers was being referred to. A constructive result was also achieved by his  intervening to clarify the nature of the offence of being an accessory after the fact when the witness maintained she had not helped the appellant. As Ms Guy said, it was always going to be the case that the witness would be challenged as to her credibility in light of her past offending and the Crown’s right to do so, and nothing that the Judge did caused greater prejudice than was inherent in the permissible line of cross-examination.

[18]            It was of course always part of the defence case that the appellant had been in custody during a substantial part of 2000 and 2001 so that he could not have committed certain offences alleged against him. We do not accept that what the Judge did when the partner gave evidence carried any additional prejudice. Indeed the interventions contained the unavoidable prejudice that arose from the defence strategy. Also the Judge later gave very clear directions to the jury to disregard the evidence of prior offending by the appellant other than where it was relevant to the current trial.

[19]            For the sake of completeness we add that the additional ground for the Judge’s ruling, namely that the defence had put character in issue at the trial was strictly not necessary as a reason for allowing cross-examination on the past

conviction, but cannot otherwise be criticised. He warned defence counsel where questioning of the complainants’ mother concerning benefits might lead to, and counsel chose to proceed anyway. We take up this matter further when dealing with the ground of appeal that counsel was incompetent, but wish to make plain that we have no concern at this aspect of the Judge’s conduct of the trial. The first and second grounds of appeal accordingly are unsuccessful.

Ground 3 - Preventing cross-examination on a prior inconsistent statement

[20]            The appellant had faced a previous trial on the charges concerned which resulted in a mistrial. The complainant S gave evidence at that trial. At the subsequent trial defence counsel asked S if her sister J had told her that she should say that the appellant had been feeling her as well. S responded “No”. Defence counsel then asked about her earlier evidence;

Have you on another occasion said that it was J that told you to say that Uncle Pio had been feeling you as well?…No.

Do you remember me asking you questions on a previous occasion in March this year?…No.

You don’t remember me asking you questions before about this?…No.

You don’t remember saying on a previous occasion --- THE COURT –Move on.

It was J that told you to say that Uncle Pio had been feeling you as well, wasn’t it?…No.

[21]            Mr King submitted that the Judge had wrongly prevented the defence from further cross-examining the complainant to expose a prior inconsistent statement at the first trial. We do not, however, read the transcript that way. The Judge’s indication to counsel that he should move on was not a requirement that he cease the line of questioning altogether, but rather that, the complainant having made clear for the third time that she did not remember the occasion concerned, counsel should not continue to question her on her recollections. The Judge did not exclude counsel from attempting to impeach the testimony of the witness by other means including further questioning of the witness. In those circumstances there is nothing in this point. We record, however that, in her submissions for the Crown, Ms  Guy  indicated that she did not accept that what had been said by the witness at the first

trial amounted to  a  prior  inconsistent  statement.  It  was  a  debatable  question.  Mr King did not reply on that point. Neither party elected to put the relevant part of the transcript before us.

[22]This ground accordingly fails.

Ground 4 - Amendment of count 2

[23]            At the conclusion of the Crown case counsel for the appellant applied under s347 of the Crimes Act for a discharge of the appellant in respect of count 2, which had alleged that he had raped J. Counsel submitted there had been insufficient evidence of penetration to properly found a conviction for rape. In ruling on the application the Judge decided that the evidence as to penetration was equivocal, in that at times during her video interview the complainant had said that penetration  had occurred, and at other times she said it had not. The meaning of her answers hinged on what the complainant understood the word “inside” meant. He decided, however, that it would be unfair to submit the accused to the risk of conviction on this count of rape. There being in his view more than sufficient evidence on which the jury could convict of attempted rape he exercised his discretion under s335 to amend count 2 to alleged attempted rape.

[24]            Mr King argued that this late amendment should not have been made, the question arising at the end of the Crown case after a s347 application. It was impossible for counsel to recast the defence to address the crime of attempted rape at that point. He submitted that the Judge should have discharged the accused  on  count 2.

[25]            Amendment to charges during the course of the trial is governed by s335, which empowers the Court to amend an indictment or any count so as to make it conformable with the proof where there is variance between what is proved and what has been charged. The Court is directed by s335(2) to make the amendment if of the opinion that the accused has not been misled or prejudiced in his defence. Mr King submitted that the Judge erred in making an amendment because the evidence did  not support the amended charge. Not only had J conceded under cross-examination

that the appellant’s penis had not been inside her but, Mr King argued, her evidence did not go so far as to establish that there had been an attempt. The key passage is in the video interview of J as follows:

JR: Okay. And then you said he hopped on you and he did what? JM: Oh he hopped on me and then he started going up and down. JR: What did he do when he did that?

JM: Um just that (moves up and down)

JR: So what part of his body was going up and down? JM: His bottom and his penis.

JR: Mm hm. Where was his penis? JM: Um by my private part.

JR: By your private part? JM: Yeah.

JR: Was it, which private part are you talking about? Your bottom or your fanny?

JM: Yeah my fanny.

JR: Your fanny, okay then. And where did his penis go?

JM: Um his penis went um up my chest and kept going up and down my chest and my fanny.

[26]            The complainant went on to say that the appellant’s penis had gone on the inside of her body but later said “…it just went up and down it didn’t go in anything.”

[27]            We were initially attracted by Mr King’s submission but after reflection and re-reading the evidence of J’s interview and cross-examination take a different view. At the relevant time the accused had removed his shorts. In those circumstances given what the complainant J described happened on the bed, (as set out above), and her evidence that the appellant had rubbed his penis on her skin on the outside of her “fanny” we conclude that it would be quite unrealistic for us to hold that an inference was not reasonably available to the jury to find that the appellant had attempted to rape the complainant.

[28]            Nor do we accept that there was any prejudice to the appellant as a result of the lateness of the amendment. The defence to all charges was that the incidents concerned had simply not occurred, and had been made up by the complainants. In

those circumstances there was nothing unfair in amending the count under s335. The present case is similar to R v Durno [1973] 1 NZLR 357 in this respect. This ground also fails.

Ground 5 – Misdirection of jury in respect of attempted rape

[29]            The appellant also takes issue with at the following direction of the Judge in respect of the attempted rape charge:

[29]   It is a crime to attempt to commit a crime even if, for whatever reason, the attempt is unsuccessful. So to prove an attempted crime the Crown must prove two elements. First, that the accused formed an intention to commit that crime in this case namely, rape.

[30]     Secondly, that the accused did some act for the purpose of actually carrying that intention into effect.

[31]    Both those factors are, of course, important but the second one needs particularly careful consideration. The Crown must satisfy you that what the accused did was for the purpose of actually beginning to commit the crime of rape. An act that apart from just thinking about doing it, or preparation or making the attempt to commit it, are not sufficient.

[30]            The complaint concerns the final sentence in paragraph 31 which Mr King described as confusing and likely to leave a jury wondering what is required for an attempt. While an error of expression (or perhaps an error in transcription) has crept into the final sentence of paragraph [31], it is plain that in the direction the Judge has identified the two necessary elements, namely that the accused must have formed the intention to commit sexual violation and that there must be some act by the accused for the purpose of carrying that intention into effect. Furthermore, immediately after this direction, the Judge proceeded to direct on the crime of rape with which the appellant was also charged and in that context made it clear that what he was to say concerning rape also needed to be taken into account concerning the charge of attempted rape.

[31]            We are satisfied that the jury would not have been confused by what the Judge told them and in particular would have appreciated that they must be satisfied that what the accused did was for the purpose of actually beginning to commit the crime of rape. While clumsily worded, the meaning of the direction to the jury is

clear, in that the conduct had to go beyond merely thinking about the act or mere preparation. This ground of appeal accordingly also fails.

Ground 6 – Improper reliance on similar fact evidence Ground 7 – Misdirection on similar fact evidence

[32]            In her closing address the Crown prosecutor invited the jury to treat the evidence of each complainant as being relevant to counts of offending against the other complainants. There was no prior explicit indication during the trial that the Crown’s position was that the case was one of similar fact evidence and no application was made to the Judge for permission to address the jury on that basis. Mr King cited in support of his submission the dictum of this Court in R v Newberry CA 189/01, 30 July 2001 that it was “obviously desirable” for the Crown to obtain a ruling of the Court before inviting a jury to deal with evidence of multiple complaints on a similar fact basis. Mr King also argued that there had been a misdirection on similar fact evidence by the Judge.

[33]            We are satisfied that there were obvious similarities in the offending alleged by the three complainants against the appellant. The offending was in each case against nieces of the appellant who were of a similar age. It involved similar acts of touching taking place on a bed or couch as well as more serious offending against J when the victim appeared to be asleep. On all but one occasion the offending occurred at the appellant’s house.

[34]In Newberry this Court said at para [32]:

We are not persuaded that there is any legal rule preventing a prosecutor from relying on similar fact evidence considerations in an address to the jury without a formal ruling as to admissibility having been first obtained. But obviously it is desirable to seek such a ruling before placing a similar fact evidence argument before a jury. The obtaining of such a ruling enables the Judge and counsel to focus on the true relevance of the similar fact evidence. From the point of view of the prosecutor, it is obviously sensible to seek a ruling from the Judge before addressing the jury on the basis that it can take into account similar fact evidence because this avoids the risk of embarrassment and confusion if the Judge later rules the other way.

[35]            No such ruling was sought by the Crown in this case. Mr King argues that had one been made it may not have been granted because of the historic nature of the allegations, the fact that they are unrelated in terms of time and the different level of seriousness of alleged offending against J. Mr King submitted that the reliance on similar fact principles had not been anticipated by defence counsel.

[36]            We cannot accept that the defence was taken by surprise, let alone prejudiced by the development concerned. Defence counsel had not made a pre-trial application for severance, which might have been expected had he wished to argue that the evidence in relation to any one complainant was not admissible in relation to the others. Indeed the defence, as Mr King acknowledged, relied on the similarity of the allegations as indicative of there having been collusion by the three sisters. Defence counsel cross-examined them extensively on this basis. Unsurprisingly no complaint was made by defence counsel at the conclusion of the Crown’s closing address as to what the prosecutor said about how the evidence of each might be used. Overall this is consistent with the parties having proceeded, at all stages, on the basis that this was plainly a similar fact evidence case even if that was only made explicit in the Crown’s final address.

[37]            The proper protection for the appellant from misuse of the evidence by the jury lay in the directions given to the jury by the Judge as to how to treat the evidence concerning one  complainant  in  relation  to  the  others.  On  that  point  Mr King complains about the Judge’s direction that the jury could use the evidence given by other complainants to help it decide whether each charge is established beyond reasonable doubt in respect of the particular complainant being considered. He argues that it is expressed too broadly. We are satisfied that that is not the case, however, when the similar fact evidence direction is read as a whole. The Judge’s directions on the illegitimate use of the evidence, and his caution against propensity reasoning, were accurate and clear. They were seemingly modelled on this Court’s judgment in R v Sanders [2001] 1 NZLR 257.

[38]            Overall, we are satisfied that in a context where it was obvious that the Crown was presenting a similar fact evidence case, in which the defence squarely addressed the evidence as such in cross-examination, and which the Judge covered

with clear and correct directions no prejudice arose from the way in which the Crown addressed on the significance of each complainant’s evidence to the counts involving others.

Ground 8 – Biased criticism of defence case

[39]            Mr King was critical of comments by the Judge in his summing up on aspects of the defence. Defence counsel had said to the jury in his closing address that “we all know that children lie” and that “these types of allegations are easily made and hard to refute”. The Judge referred to these observations in his summing up when he addressed the defence case. The two passages complained of read:

(Defence counsel), he started by saying well these allegations are easy to make and hard to refute. He says that everyone knows that that is true.  Well I am telling you that there is no evidence of that and I do not know if everybody does know it. It is a submission. You take it on board if you  agree with it, but it is a submission that is not founded on any evidential basis. But you give to it what weight you think fit.

And:

(Defence counsel) submitted to you that children make up stories all the time. I am not sure that we heard any evidence about that.  You  will use your own experience in life. But I can tell you there is no evidence before this court, or that I know of, that children lie or are more apt to lie more easily than adults. That is why I gave you the direction about how you deal with child witnesses. You apply your own assessment to them, your knowledge of the world and your assessment to what you have seen and heard. But juries are never warned to accept children’s evidence  with caution because they are likely to lie. If there was evidence of that you would have heard it. But it is a submission that (defence counsel) made to you and you can agree with it or not, bearing in mind it is a submission.

[40]Earlier, the Judge had said of the Crown’s case:

The Crown says, in anticipation of (defence counsel) saying these allegations are too easy to make up, and the Crown says well if you think they are there is no evidence at all before you that allegations of sexual abuse are easy to make up.  It is said by counsel that is submission.  Clearly they are difficult to answer but that is often the case. But I tell you that submission that allegations of a sexual nature are “easy to make up” is no more than submission. You decide whether you accept that. You decide whether you accept the evidence of the children. You decide whether it was easy for  them to give evidence. It may be hard to give evidence of sexual abuse just as it may be hard to give evidence of false sexual abuse. Do not get too

bound up in those submissions. You just keep your eyes squarely on the  ball. But the Crown says it has proved its case.

[41]            We can deal with this ground shortly. What the Judge said in relation to the defence case was restrained and appropriate. It is common for defence counsel to make observations of this kind to the jury in a case of alleged multiple offending against children and it was entirely within the province of a Judge to express a view of the kind that was expressed in this case. Mr King criticised the Judge’s comment made on the Crown’s anticipatory submission as being slanted against the defence. We do not read it in that way. It is a balanced observation in respect of what the Crown said on the matter, telling the jury it is a submission only.

[42]            The effect of what the Judge did was not to create any prejudice against the defence but, rightly, to remind the jury of its responsibility to form its views on the evidence recognising that part of what defence counsel has told them during his address is in the nature of a submission. This ground of appeal also fails.

Ground 9 – Refusal to permit re-viewing of videotape by jury

[43]            During their deliberations the jury asked to see again the video interview with the complainant J. The Judge conferred with counsel and then refused the request because of his concern that the jury would see a child complainant give evidence twice. Instead he caused a transcript of the interview, together with that of J’s oral evidence at the trial, including cross-examination, to be read out.

[44]            Prior to the hearing of the appeal, following an indication that the appellant wished to rely on errors by his defence counsel during the conduct of his trial, the appellant waived his right to legal privilege in respect of communications between him and his former counsel. His counsel then swore the affidavit already referred to addressing various matters, including the Judge’s refusal to allow the videotaped interview to be replayed. Defence counsel said that he had submitted to the Judge that the video should be shown again. At the time the Crown had not opposed that course.

[45]            In his affidavit counsel added that the reason for his attitude to replaying the video was that part of the defence case at the trial had been that the complainant J’s original “story” had grown during the evidential interview which was apparent when watching the videotape. It was probable, counsel opined, that the jury’s request to see the interview again was the result of counsel’s submissions along these lines in his closing address. The Judge’s refusal to allow that to be done deprived the jury of the opportunity to observe once again the demeanour of J when interviewed.  Counsel said there was a consequential downstream impact on the credibility of the other complainants who the defence said had copied what J had said in their own complaints.

[46]            It is well settled that a trial Judge has a discretion to direct that a videotape forming part of the Crown’s evidence should be replayed, subject to ensuring that any reinforcing effect on the Crown’s case is properly balanced, for example by having  a  transcript  of  cross-examination  read  out:    R  v   Webby  CA277/95,    22 September 1995; R v S CA215/00, 28 August 2000 para [12]. As we emphasised in the latter case, however, how such a matter is handled is very much for the discretion of the trial Judge, who of course carries an overarching responsibility for deciding what course best serves the interests of justice at a trial. The Judge is not required to follow the preferences of counsel even where they agree.

[47]            In the present case the Judge ruled that those interests were best served by instead reading J’s statement together with all her oral evidence to the jury. He said in his ruling that having seen the video only three days ago, the jury would be well able to remember the child’s demeanour. The appellant’s contention that this course deprived jurors of an opportunity to further observe J’s demeanour did not persuade him, and is highly speculative. As Ms Guy pointed out different theories of why the request was made during this jury’s deliberations can easily be advanced. The Judge’s preference for a reading of the transcript reflected his view that this was the safer and most appropriate course generally and in the circumstances before him. This is in accord with the judgment of the English Court of Appeal in R v Rawlings [1995] 1 All ER 580 where, however, Lord Taylor CJ delivering the judgment of the Court helpfully suggested that a Judge might enquire of a jury as to the reason for a request and then confine what was provided to the notes of evidence if the jury

responded that it wished to be reminded of what was said, rather than how it was said. That course would also be open to a New Zealand trial judge and in the normal course would not give rise to any concern over intruding into the jury’s deliberations (cf R v O [1996] 3 NZLR 295, 299-300). We are satisfied that there is no basis for interfering with his exercise of his discretion. This ground of appeal accordingly also fails.

Ground 10 – Radical error by counsel

[48]            This ground of appeal covers territory already traversed in the context of a different ground of appeal. The appellant says that his trial counsel made radical errors in the conduct of the defence. Three particular errors are alleged.

[49]            The first perceived error was counsel’s decision to cross-examine the complainants’ mother in a way which led the Judge to decide that character had been put in issue, with the result that the appellant’s partner was cross-examined on her prior convictions. The short answer to this point is that, as indicated when dealing with the first and second grounds of appeal, the appellant’s partner was always going to be cross-examined on her prior convictions if she gave the evidence she did supporting the appellant’s case. We are also satisfied that for another reason, there is no sound basis for any criticism of defence counsel’s cross-examination. We say  this despite what counsel himself has told us in his affidavit. Counsel says he was instructed that the complainants’ family was often desperate for money and that their mother and her partner had both unlawfully claimed unemployment benefit. It was decided to test with the mother whether obtaining money from an ACC claim might have been a motive for bringing false complaints. At the first trial this was counsel’s line in cross-examination, but it was not productive because the mother said she had not made a claim.

[50]            As a result, as trial counsel put it in his affidavit, “the defence theory was refined prior to the second trial”. The defence then was to be that J had made up her complaint of sexual abuse, told her sisters of it and that they had then made their own false allegations against the appellant. Counsel, however, says that in error and inconsistently with the strategy he cross-examined the mother at the second trial

about the fact that she had wrongly claimed benefits and also that she had made a false statutory declaration in order to do so.

[51]            As we see the position it remained advantageous for the defence at the second trial to impeach the credibility of the complainants’ mother, if it could, under the refined defence theory so as to support the defence of fabrication and collusion by the complainants. It was for counsel to make judgments as to how far to go in doing so, but some evidential basis for attacking her credibility would obviously assist the defence. Counsel knew of the alleged double benefit claims and put them to the mother with some success insofar as she did not deny making wrongful claims and a false declaration. In hindsight the answers may not have been of great value but that is not in point. As we see it defence counsel simply made  a decision which was  open to him, in the course of cross-examination, of a kind which cannot possibly be categorised as a radical error.

[52]            The second alleged error of counsel identified by the appellant was in leading evidence of the appellant being in custody between 28 May 1998 and 7 March 2000. The incarceration of the appellant was thereafter adverted to during the trial and referred to by the Judge. Mr King’s contention was that a different means of establishing that the appellant was not at his home during the nineteen month period concerned should have been found by counsel.

[53]            As Ms Guy pointed out the appellant’s incarceration was an important aspect of his defence in relation to opportunity to commit crimes within those dates. Counsel was able to say, for example of the complaint of S, that as he was only at home for such a short time during the relevant period, the complainant’s evidence lacked credibility. For this reason it was essential that the jury knew the appellant was away from home during the dates concerned.

[54]            We are satisfied that counsel was able to confine the prejudice by the manner in which he led the evidence of imprisonment. He was able to show the incident concerned was unconnected with the present offending and indeed was not related to sexual offending at all. As he knew would happen, the Judge directed the jury

strongly to put aside feelings of prejudice, telling them to put out of mind the reason why he might have been in jail.

[55]            Nor was Mr King able to suggest to us a better way to present the evidence of the appellant’s absence from home during the period concerned which would not have encountered potential problems with the witness concerned. Overall we consider that the appellant has exaggerated the prejudice resulting from defence counsel’s straightforward approach.

[56]            The final ground of incompetence concerned failure of the appellant to cross- examine the complainants, or their mother, on the possibility that another relative or a third person who visited the family had committed the offences. However the line of cross-examination had been pursued at the first trial without success. Defence counsel presumably decided there was no advantage from repeating the exercise at the retrial, as he was entitled to do. These grounds of appeal therefore also fail.

Conclusion

[57]            Accordingly none of the grounds of appeal are made out and the appeals against conviction are all dismissed.

Solicitors:
Crown Law Office, Wellington