R v Hughes - [2008] NZCA 459

IN THE COURT OF APPEAL OF NEW ZEALAND

CA194/2008
CA195/2008
[2008] NZCA459
THE QUEEN
v
SEFU KILIVA
ATIGI KILIVA
Hearing:22 October 2008

Court:Baragwanath, Priestley and Venning JJ
Counsel:B Castelino for Appellant

N P Chisnall and S M Earl for Crown

Judgment:3 November 2008 at 4pm

JUDGMENT OF THE COURT

A        BOTH APPEALS AGAINST CONVICTION ARE DISMISSED.
B        Both appeals against sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Priestley J)
The appeals
[1]       The appellants are brothers. They jointly faced three counts, being one of unlawful sexual connection and two of sexual violation by rape. The victim was a “sex worker” who entered the appellants’ vehicle one morning in February 2007 as dawn was breaking. The appellants were heavily intoxicated. They drove the sex worker to a South Auckland park, where the offending occurred.
[2]       The appellants’ jury trial, presided over by Judge A Johns, took place in December 2007. The appellants were separately represented at that trial. They called no evidence. The jury convicted them.
[3]       The Judge sentenced Sefu Kiliva to eight and a half years’ imprisonment and Atigi Kiliva to six years’ imprisonment. She regarded, for reasons not relevant here, the former appellant’s culpability as somewhat greater.
[4]       Appeals were lodged against both conviction and sentence. Although the appeals against sentence were not formally withdrawn, Mr Castelino accepted that he was unable to advance any reasons as to why the sentences were manifestly excessive.
[5]       The appeals against conviction were effectively challenges to the competence of their counsel at trial who, it was claimed, had not followed instructions. Sefu Kiliva’s counsel was Ms M Tuilotolava. Atigi Kiliva’s counsel was Mr P Le’au’anae. Both had sworn affidavits at the request of the Crown and were cross-examined by Mr Castelino.
The evidence on appeal
[6]       The major appeal point advanced in the written submissions was discernible from the appellants’ two affidavits on which, with assistance from a Samoan interpreter, Mr Chisnall cross-examined. The affidavits were virtually identical and relevantly gave the appellants’ respective recollections of their encounters with the sex worker. They deposed they were under the impression the sexual activity was consensual and followed an agreement concluded with the sex worker.
[7]       They deposed that at no stage did the complainant say anything to suggest she had withdrawn her consent to sex. Their major complaint was that the jury did not hear their side of the story in a situation where credibility was at issue. They said that the jury was “rightly prejudiced against [us] and entered a verdict of guilty based on the evidence that they heard and saw, resulting in a gross miscarriage of justice….”
[8]       This affidavit evidence was clearly crafted to support counsel’s written submission that trial counsel had made a “radical error” in not calling the accused to give evidence. In counsel’s submission, had such evidence been given, the jury would have had a basis to conclude that the accused subjectively believed the complainant had consented to the sexual activity.
[9]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Hughes

Details

AGLC: R v Hughes [2008] NZCA 459
Case: [2008] NZCA 459
Decision Date: 3 November 2008

CaseChat Overview and Summary

This appeal involved two brothers, Sefu Kiliva and Atigi Kiliva, who appealed their convictions and sentences for sexual offences. The case was heard in the Court of Appeal of New Zealand. The appellants were represented by counsel, while the Crown was represented by the Solicitor-General. The central issue in the appeal was whether the appellants' trial counsel had acted incompetently by not allowing them to give evidence at their trial. The appellants claimed that their counsel did not follow their instructions to testify and that this resulted in a miscarriage of justice.

The Court found that both appellants had been competently represented by their trial counsel, who provided standard advice on the decision to testify. Both appellants were aware of their right to give evidence and had chosen not to do so. Sefu Kiliva had signed a written instruction declining to testify, while Atigi Kiliva had given similar instructions verbally. The Court found no evidence that the appellants had given any contrary instructions to their counsel. Therefore, the Court concluded that the appellants' autonomy to decide whether to testify had been preserved and that their counsel had not overridden their decision.

As a result, the appeals against both conviction and sentence were dismissed. The Court also commented on the lack of merit in the appeals, stating that responsible counsel should have recognised this and that the appellants' complaints should have been set out in detail and with specificity. The Court emphasised the importance of careful scrutiny of the merits and focused presentation of the case, particularly when public money is involved.

Orders