R v Halalilo Ca139/01

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA139/01

THE QUEEN

DAVID HALALILO

Hearing:	27 September 2001
Coram:	Gault J Keith J Salmon J
Appearances:	P E Dacre for Appellant P S Dean for Crown
Judgment:	27 September 2001

JUDGMENT OF THE COURT DELIVERED BY GAULT J

A jury in the District Court at Auckland found the appellant guilty on one count of abduction (detaining) of a girl with intent to have sexual intercourse with her and one count of indecent assault. He was sentenced to imprisonment for three years six months. The appeal is against his conviction.
The facts can be stated briefly. On 30 January 2000 the complainant, then aged 14 years, visited a “tinnie” house for the purpose of paying a drug debt and attempting to procure another foil of cannabis on credit. According to the evidence of the complainant the appellant was the person she encountered at the house. He accepted the payment and invited her into the lounge. He locked the deadlock on the front door, closed the curtains and secured a ranchslider door by placing a block of wood on the slide. Over a period the appellant attempted to induce the complainant to have sex with him. He fondled her breasts and genitals through her clothes, forcibly kissed her and offered cannabis in return for sexual intercourse. The complainant repeatedly rejected his advances stating that she was only 14 years old. During this period some people came to the house to purchase drugs at the front door but the complainant maintained she was unable to leave. Eventually, she said, an associate of the appellant arrived at the house and assisted her in leaving.
Although having earlier denied it to the police, at his trial the appellant accepted that the complainant was at the address for a short time on the day in question, but maintained that he did not touch her in any way and did not discuss sex with her. He called two witnesses who claimed to have arrived while the complainant was there and who contradicted parts of her account. Both were challenged on credibility and were cross-examined on previous convictions.
The jury were required to determine the matter on the credibility of the conflicting accounts and quite lengthy cross-examination.
The appellant completed his own notice of appeal. The grounds of appeal he set out understandably reflected lack of knowledge of the appeal process. In essence, however, they complained of inadequate representation by his trial counsel (not Mr Dacre) and failure to expose false evidence by the complainant and by the two witnesses called on his behalf.
Having been assigned to appear for the appellant, Mr Dacre reviewed with him the grounds of appeal. He has responsibly, and correctly, advised the appellant that his original grounds were misconceived. In helpful written submissions Mr Dacre has traversed those grounds and indicated, with reasons, that he is unable to support them. We fully agreed with his assessment.
The one ground that we have been invited to consider is directed to differences between the statement made by the complainant to the police and her evidence in Court. The complaint is, in effect, that trial counsel did not cross-examine the complainant and a recent complaint witness to bring out the inconsistencies and so did not sufficiently expose her lack of credibility.
As the Court’s practice note makes clear, an attack on the competence of trial counsel cannot realistically be advanced without affidavit evidence and waiver of privilege to enable the Crown to obtain the views of the trial counsel concerned. That has not been done in this case. But there have been some difficulties for Mr Dacre in having access to the appellant and his client should not be disadvantaged because of that. We have therefore listened to his submissions on the likely impact on the trial of further cross-examination on the points identified by the appellant.
We are conscious that the focus of the trial was the credibility of the complainant, so care is needed in considering matters which might have influenced the jury in making the assessment they were required to make. However, even assuming the matters referred to (to the extent that they were not investigated) were not matters of deliberate choice by counsel and were simply overlooked, we could not put them in the category of radical mistakes of the kind necessary before a Court will intervene on appeal: R v Pointon [1985] 1 NZLR 109.
Mr Dacre grouped the matters in which inconsistency is contended under three broad headings. They were the length of time over which the incident was said by the complainant to have occurred, the evidence of the complainant’s inability to secure assistance from those who visited the house and evidence concerning a tattoo which the plaintiff denied having on her midriff when questioned in cross-examination.
With reference to the time period involved, this was the subject of considerable attention in the course of the trial. In her evidence in chief the complainant said that about a two-hour period was involved whereas in her statement to the police the general tenor was of an incident of much shorter duration. Witnesses were asked about the timing of their movements and throughout the trial there was a considerable emphasis on the length of time the complainant was at the house. We are satisfied that this was sufficiently ventilated before the jury for them to have a full appreciation of the issue.
The explanations given by the complainant of being unable to secure help were (in evidence in chief) that she believed assistance would not be forthcoming and (in the statement to the police) that she panicked and could not get the words out. We are satisfied that this difference, which does not go to the essential elements of the offence, was such that even if highlighted by further crosss-examination would not have led to the jury reaching any different conclusion. Counsel may well have elected to rest on the unconvincing explanation in evidence rather than introduce the element of fear involved in the earlier explanation.
The third matter relating to the tattoo is a clear example of a matter on which trial counsel would have made a tactical decision. The contention that the recent complaint witness should have been asked about a tattoo on the complainant after she had denied having a tattoo would have been fraught with danger. Such a question by counsel without knowing the answer risked an answer reflecting adversely on the accused. We do not think there can be any criticism of counsel in not pursuing the matter in the way suggested.
The other matters were set out in the helpful written submissions of Mr Dacre but, having carefully considered them, we are satisfied that they either were adverted to sufficiently in the course of trial or were not of a nature as would have led to any different conclusion by the jury on matters which were essentially for them.
The appeal, accordingly, is dismissed.

Solicitors

Crown Solicitor, Auckland

[2001] NZCA 411

27 September 2001