R v K (CA197/07)

[2008] NZCA 3

ORDER: NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RE-TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

NOTE:  PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SECTION 139

CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA197/07 [2008] NZCA 3

THE QUEEN

v

K (CA197/07)

Hearing:         29 and 30 August 2007

Court:            Robertson, Baragwanath and Heath JJ Counsel:          C W J Stevenson for Appellant

D R La Hood for Crown

Judgment:      14 February 2008         at 9 am

JUDGMENT OF THE COURT

AThe appeals against conviction on counts 2 and 3 of the indictment are allowed.   The convictions  and  sentences  imposed  in  consequence are quashed.

B        A new trial is ordered in respect of those counts.

R V K (CA197/07) CA CA197/07 14 February 2008

C        Questions of bail are for the District Court to determine.

DNot to be published in news media or on Internet or other publicly accessible  database  until  completion  of  re-trial.  Publication  in  law

report or law digest permitted.

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1]      The  appellant  (K)  was  tried  in  the  District  Court  at  Blenheim,  before Judge McKegg and a jury, on one count of indecent assault and one count of sexual violation by rape.  On arraignment, at the commencement of the trial, he had pleaded guilty to assaulting the female complainant on two separate occasions and to breaching a protection order taken out against him by her.

[2]      K was found guilty by the jury on the two counts to which he entered not guilty pleas.  On all charges, he was sentenced to an effective term of imprisonment of nine years.  He appeals against all convictions entered, whether as a result of the guilty pleas or of the jury verdicts.   No appeal is brought against the sentence imposed.

Background facts

[3]      For some time, the complainant and K had been in a turbulent relationship. Although they continued to associate and, on some occasions, to cohabit, the complainant had obtained a protection order in her favour from the Family Court.

[4]      The complainant alleged that, on 2 July 2005, she was asleep at a flat she (sometimes)  shared  with  K.    She  contended  that  he  had  returned  to  the  flat intoxicated,  at  about  5.00am.    She  asserted  that  he  grabbed  her  by  the  throat, strangled her and accused her of sleeping with someone else.  There was also some suggestion that K had thrust an object into her genital area.   The 2 July incidents gave rise to counts 1 and 2 of the indictment: male assaults female and indecent assault respectively.

[5]      On 5 July 2005, the complainant and K participated in a pool tournament at a local hotel.  At about 1.30am on 6 July 2005 they returned to their home address. Both had been drinking heavily.   The charges of male assaults female and sexual violation by rape arose out of events that occurred after they returned to the flat.

[6]      K and the complainant went to their separate bedrooms.  About 50 minutes later the complainant awoke and said that she found K in her bed, naked.   She deposed that he was in the process of completing an act of sexual intercourse to which she had not consented.

[7]      K  did  not  provide  a  statement  to  the  Police  or  give  evidence  at  trial. However, during preparation for trial he had always accepted that sexual intercourse occurred between himself and the complainant that night.  From his perspective, the issue was one of consent.  Whereas, the complainant alleged that the intercourse was uninvited and began while she was asleep, K maintained that it was consensual.  The act of sexual intercourse gave rise to count 3 of the indictment, the charge of sexual violation by rape.

[8]      After the incident involving sexual intercourse, the complainant alleged that K became aggressive when asked to leave her room.  K was said to have punched her with a closed fist on a number of occasions.  The complainant also alleged that he pulled her hair.   Notwithstanding medical evidence that confirmed that the complainant had received bruising and swelling to her head, K has always denied that he assaulted the complainant in the manner alleged.

[9]      The alleged “punching” incident gave rise to count 4 of the indictment, a charge of male assaults female.  However, K said that he believed that his plea of guilty to this charge was entered on the basis that he had hit the complainant with a cellphone.

[10]     The assault with a cellphone arose in the following way.  The complainant says she told K that she would telephone the Police.  K grabbed the complainant’s mobile telephone and threw it into a wall.  That violence was alleged to constitute a breach of the protection order.  K pleaded guilty to count 5, the charge of breaching the temporary protection order.

Grounds of appeal

[11]     The grounds of appeal reduce to five:

(a)The conduct of the defence case at trial led to a real risk of an unsafe verdict or an unfair trial.

(b)The  accused  ought  not  to  have  faced  a  charge  of  breach  of  the protection order at trial.   Nor should evidence of prior violent behaviour have been admitted by the Judge.   The former goes to a question of severance, while the latter is an admissibility issue.

(c)The Crown ought not to have led evidence from a police officer to the effect that K declined to provide a statement.   In the absence of a direction from the Judge to inform the jury of his right to silence, both at the time the evidence was led and in summing up, admission of that evidence was inappropriate.

(d)Counsel for the Crown ought not to have referred, in his  closing address to the jury, to K’s decision not to provide a statement to the Police.

(e)There was  no  evidence  from  which  a  reasonable  jury could  have concluded that count 2 of the indictment (indecent assault) had been proved beyond reasonable doubt.

[12]     Mr Stevenson, for the appellant, submitted that, individually or collectively, those alleged irregularities in the trial process constitute a miscarriage of justice requiring the convictions to be quashed and a new trial ordered.  Mr La Hood, for the Crown, submitted that no miscarriage of justice had occurred.

[13]     In addition, K applied to withdraw his guilty pleas in respect of the assaults alleged  to  have  occurred  on  2  and  6  July 2005  and  the  alleged  breach  of  the protection order.

[14]     Because the appeal involved a challenge to the conduct of the defence, we heard evidence from the appellant and trial counsel, Mr Turner.  Both witnesses were cross-examined on affidavits they had sworn before the appeal hearing.

[15]     We take the view that the appeal can be determined on the basis of the way in which the defence case was conducted.  On our view of the case, it is unnecessary to deal with the remaining grounds of appeal.   Any issue relating to withdrawal of guilty pleas ought to be determined in the High Court on a formal application under s 169 of the Summary Proceedings Act 1957.   There is no present jurisdiction for this Court to entertain appeals against convictions entered as a result of those guilty pleas.

The trial strategy

[16]     The trial strategy that lay behind the entry of the guilty pleas before the jury on the assault-related charges was to make clear that K accepted responsibility for violent, but not sexual, offending.  On that basis, his case could be left with the jury on the footing that neither indecent assault nor rape occurred.

[17]     Originally,  K  instructed  Mr  P  Watson  to  act  as  his  counsel  at  trial. Subsequently, Mr Watson approached Mr Turner and asked if he would assume the

brief.  K agreed to that course of action and Mr Watson’s file was made available to Mr Turner.  Mr Watson had engaged a private investigator to interview K and others. The investigator prepared a thorough report which was made available to Mr Turner.

[18]     The appellant is illiterate.  On the basis of his evidence before us, we assess him to be an unsophisticated man who, provided that concepts are explained to him slowly and carefully, has sufficient capacity to make proper trial decisions on advice from counsel.

[19]     Mr Turner first saw K on 9 May 2006.  When he saw K again, on 28 July

2006, a meticulous draft brief of evidence had been prepared.  Mr Turner was aware of K’s impaired reading ability and arranged for K’s sister to attend most meetings.

[20]     As a result of the meeting of 28 July 2006, Mr Turner made some changes to the draft brief of evidence and forwarded it to K under cover of a letter dated 31 July

2006.  Mr Turner was aware of K’s reading difficulties but, because his sister had attended most meetings, Mr Turner expected that she would read the letter and the final version of the brief to the appellant.

[21]     The brief of evidence contained an acknowledgement that sexual intercourse had occurred between the appellant and the female complainant.  The sole issue on the rape count was consent.   The written brief also incorporated a denial of the allegations of serious violence that gave rise to count 4 of the indictment.

[22]     Mr Turner acknowledged that he had finalised preparation of the brief on the basis that the accused would not give evidence.  During the course of his evidence before us, Mr Turner acknowledged that he did not say expressly to K that he did not intend to challenge the complainant with the appellant’s version of events, namely that she was awake and was  a consenting and willing participant in the sexual intercourse.  Rather, Mr Turner believed that, in the course of their discussions, it was clear that those issues were not to be raised: see page 18 lines 30-35 of the Notes of Evidence.   That evidence was reinforced by Mr Turner’s answer to a question from the Bench:

ROBERTSON J: Did you specifically say “We are going to challenge the fact there was sex at all?… I certainly didn’t put it that way.  [see page 19 lines 7-10 of the Notes of Evidence]

[23]     We accept that Mr Turner honestly believed that he had implied authority to proceed in that way.  But, the consequence of the decision to proceed on that basis was to remove any right of election at trial, because the suggestion that sexual intercourse did not occur was contrary to the evidence K was expected to give, if called.

[24]     The question is whether counsel had implied authority to conduct the trial on the basis that evidence would not be given or called by the appellant.

[25]     Mr Turner ran the defence to the rape charge on the basis that (a) the Crown had  failed  to  prove  beyond  reasonable  doubt  that  sexual  intercourse  actually occurred in the early hours of 6 July 2005, and (b) if the jury was satisfied sexual intercourse had occurred, the Crown had failed to exclude the reasonable possibility of consent or, at least, a reasonable belief that consent had been given.

[26]     Mr Turner was of the opinion that the alternative defences were not mutually inconsistent.  His approach was based on the premise that both defences rested on the need for the Crown to discharge the onus of proof on discrete elements of the offence.

[27]     Despite his explanation, it is clear that (at least) the trial Judge did not grasp Mr Turner’s  approach.    On  two  occasions,  the  Judge  put  the  defence  on  the alternative bases that (a) no sexual intercourse had occurred and, in the alternative, (b) if it had, that the reasonable possibility of consent had not been excluded.   In summing up, Judge McKegg said:

[16]      First of all, it was put to you that the act never occurred at all, and that is a factual issue for you to decide.  Secondly, it is put to you on the basis, well (that) if it did, then it was consented to, and something went wrong, and there is no proof, the Crown have not negated that.

…

[35]     Mr Turner put it to you that it was open to you to find that sexual intercourse never occurred at all, or that if it did occur, then it occurred in

circumstances where consent was clear between these two, in accordance with their relationship.

[28]     Those summaries did not reflect the way in which Mr Turner thought he had put the defence case to the jury.   They are also at odds (to a degree) with other comments made by the Judge on the issue of burden and standard of proof, in the context of the live charges.  For example:

[32]   Mr Turner asked you to consider carefully the burden of proof that the Crown has, and the standard of beyond reasonable doubt.  He suggested to you that you have to have great care regarding the evidence of the complainant,  and  that  it  is  not  supported  by  any  other  major  piece  of evidence, and certainly not by any other witness to any degree.

[29]     The trial Judge’s misunderstanding can be explained by questions put by Mr Turner when cross-examining the complainant and by the way in which the defence case was articulated by Mr Turner in closing.

[30]     The cross-examination points arose out of the following questions that were put to the complainant:

Would you  accept that  from time  to  time  in  your  relationship  with  the accused either you or he would instigate sex with the other of you when you might not be fully awake, some sexual activity that might rouse you from sleep?….He used to.

To the point where he might rouse you from sleep and in fact be on top of you having intercourse.  It had happened before?…..Yes.

….

What I am going to suggest to you, what then happened is that the accused and you started having sex  in the  main  bedroom but  an  argument  then developed leading to a fight where he assaulted you?….That’s your suggestion.

You accept that?…No.

(What) I am going to suggest to you [is that] the allegation of rape and [the] allegation on the Saturday morning he had indecently assaulted you are things that you made up when you saw the Police at your house in order to get the accused in as much trouble as you could because you were sick and tired of his drinking, his allegations and his assaults?….That’s your allegations.

You accept that?….No.

[31]     It is plain from the closing address of counsel for the Crown that he did not understand there to be any dispute about sexual intercourse having occurred.  In his closing address he said:

In terms of the rape, it is my view that there was never the suggestion that there wasn’t sexual intercourse.  There was a suggestion that the rape was a set up, but not that sexual intercourse occurred.

[32]     However, when Mr Turner closed to the jury, after Crown counsel’s address, he said:

Now I say that because the Crown case rests, in my submission to you, almost entirely on the first witness, the complainant.  There is really nothing in  the  evidence  of  all  the  other  witnesses  we  have  heard.    The  Police witnesses for example, or the ESR witness, or the doctor, which proves anything against the accused in terms of these charges.  In fact, you may well think, and I suggest that you do come to this view, that the scientific and medical may detract from the credibility of the complainant.  The doctor's findings for example.  There is no evidence of sexual intercourse.  He found evidence, marks about the head and neck that were entirely consistent with an assault on the complainant, two assaults which the accused has admitted, but there were no findings of bruises, marks or anything else on the genital area except for two things, one was a medical condition, entirely unrelated to the allegations made, and the other was something called tenderness, something that we can not observe, something caused by an irritation of nerves beneath the skin, something that the doctor could not tell us how it came about or how long it had been there for.   Nothing in the medical evidence to support the Crown case, or support the complainant.  Nothing in the ESR evidence.  You heard from the scientists today.  Doctor Taylor in particular.  He very fairly said that although there was DNA in the jeans and the major portion came from the complainant, he could not say how long it had been there.   He could not say which part of the complainant it came from.  He very fairly acknowledged that he could not be certain, and this was the scientist, couldn’t be certain the DNA of the complainant was there as a result of sexual intercourse.  Now, he is not sure about that.

For those reasons, I say to you that it is the evidence of the complainant which is really the foundation plank of the Crown case. And because of that, you need to consider her evidence in great detail.  It is my submission to you on behalf of the accused, that her evidence is not reliable, and that you are not able to accept it as either a full or truthful account of events.  At the very least I suggest to you that her evidence will leave you in a state of doubt as to what happened on those two days in question, Tuesday night/Wednesday morning.

…

If we look first at the allegation of rape, it was far from clear or consistent as to what actually happened.  You had various versions that she found him on top of her, as to why she awoke, and what was happening.  There were at least three versions of that.  She told you in her evidence that she woke up

because she was being punched, and discovered the accused on top of her, having intercourse.  But on the very night, to Constable Soper, there was a different version.  She woke up, the accused was having sex, he was abusing me, because I was not turning it up, then I was punched.  The same day, 6

July, when she spoke to the Police, it was on the same basis, she wasn’t woken up because she was being punched, it was she had woken up to find

the accused on top of her, having intercourse – something you heard goes on in that relationship, and then the accused got upset and assaulted her, and she

said that in a written statement, we heard, in August 2005.

…

So members of the jury, I suggest it is open to you to conclude that you are not satisfied with the complainant’s evidence, that sexual intercourse occurred, that that there was a rape, because her evidence is simply not at the point where you can say I am certain that these events happened, I am certain of the accused’s guilt, and the verdict must, in my submission, be one of not guilty.

…

We move to the night of Tuesday 5 July and Wednesday 6 July.  He assaulted her, punching and pulling of hair.   He has admitted that.   What was the response by the complainant – she ran next door and told the neighbour she had been beaten up.   Got on the phone and told the Police she had been assaulted.  Entirely consistent with an assault.  Entirely consistent with the same pattern of behaviour that existed in their relationship.

It is not consistent, in my submission, with an allegation of rape.   (our emphasis).

The extent of trial counsel’s authority

[33]     The law is well settled: an error made by counsel in the course of running a defence case will lead to a successful appeal against conviction only if a miscarriage of justice has occurred: R v Sungsuwan [2006] 1 NZLR 730 (SCNZ).

[34]     In summary:

(a)      In   obtaining   instructions   to   challenge,   in   general   terms,   the complainant’s credibility on the basis that K would not be giving evidence, Mr Turner did not explain to K that he intended to put the proposition to the complainant that penetration had not occurred.

(b)Mr Turner did not advise K as to the consequences of running a defence on the penetration point in a manner inconsistent to his proposed evidence.  In other words, he did not explain that K was, in effect, foregoing his right to elect to give evidence at the conclusion of the Crown case.

[35]     The absence of written instructions from the appellant at the point when trial strategy was determined can be contrasted with what occurred at the end of the Crown case.  At that time Mr Turner saw K in the Court cells and obtained a written instruction from him that he did not wish to give evidence.  Had K insisted on giving evidence at that time Mr Turner would have had no option but to advise the trial Judge of a “problem” that had arisen, because any evidence from K, on the basis of pre-trial instructions, would have been contrary to the way in which Mr Turner had put the defence case on penetration to the complainant and to the jury.  Inevitably, had that occurred, the Judge would have had no option but to abort the trial.

[36]     It is plain that the distinction between saying that sexual intercourse never occurred (on the one hand) and that the Crown had not proved that sexual intercourse occurred  (on  the  other)  was  lost  on  K.    During  cross-examination  of  K  by Mr La Hood, before us, the following exchange occurred:

[Mr Turner]  said  to  you  if  he  was  to  run  the  case  without  you  giving evidence a tactic would be to draw out all these problems with the complainant’s evidence and say the Crown hadn’t proved its case?…..No he didn’t say anything like that to me because I wanted it to be the truth, we did have sex but it was consensual.  I only found about no sex when he brought that up in Court and I had a piece of paper and couldn’t even write it down to say what are you doing.  The officers on side said that is all bullshit because we did have sex.  We went out for a break and said why didn’t you [say] about no sex because we did have sex, he said just go with it go with it.  I know what I’m doing, just trust me.  That should be straight away we did have sex, because we did have sex.

When was the break you talk about, at what stage of the trial? … Not sure we went out for a break anyway we hadn’t finished.

This is reasonably important was it before two lawyers got up and addressed the jury or after?….That long ago I can’t be positive.  I don’t think he did his addressing or whatever, I couldn’t be positive.

You knew the case wasn’t over though didn’t you?….Yeah and that’s why I

said why did you say about that and he said I know what I’m doing just trust

me and all that and so did the person on the – I can’t – the officer on the side.

The nature of the conversation was friendly enough?….What do you mean friendly enough?

You didn’t raise your voice with him?….No I was concerned like why. You were making a polite inquiry with him?….I was asking why.

He explained to you didn’t he, he wasn’t saying there was no sex he was saying the Crown had failed to prove there was sex?….No I am sure he said I think this is a better way to do it because there is no proof of it, his way, sort of mixed that.

When he said that to you, you didn’t protest and say no, no you must do it my way?….I said no we did have sex and he said no trust me I will do it this way that sort of crap, so I believed him.  He said I would get away with it without having sex, she has made it all up, but we did have sex.

You believed him and you carried on letting him represent you didn’t you?…..He was my lawyer, who else could I get to represent me, who else, Mr Watson had another job.

[37]     In Sankar v The State of Trinidad and Tobago [1995] 1 All ER 236 (PC), the duty of counsel to explain the options open to an accused was discussed. The question was whether counsel’s unilateral decision not to put forward a specific defence, but to put the prosecution to proof, amounted to a miscarriage of justice on fair trial grounds.

[38]     Delivering the advice of the Privy Council, Lord Woolf referred, at 241, to the fact that the accused in that case was placed in a position of not giving evidence without having received advice and without being given any explanation as to what were the alternative courses open to him.   The Privy Council cited with approval R v McLoughlin  [1985] 1 NZLR 106 (CA) in which, at 107, Hardie Boys J, delivering the judgment of this Court, said:

It does happen from time to time that a barrister will find himself unable or unwilling to act in accordance  with his client's  wishes.    They may,  for example, be incompatible with his duty to the Court or with his professional obligations; or he may consider that compliance would be prejudicial to his client's best interests.  Should such a circumstance arise, then he must inform the client that unless the instructions are changed he will be unable to act further.  If the difficulty arises during a trial he should immediately inform the Judge and seek leave to withdraw.   It will then be the Judge's responsibility to determine what should be done, whether in terms of arranging for an adjournment or otherwise.  But certainly counsel may not

take it upon himself to disregard his instructions and to then conduct the case as he himself thinks best.

It is basic in our law that an accused person receive a full and fair trial.  That principle requires that the accused be afforded every proper opportunity to put his defence to the jury (cf s 354 of the Crimes Act 1961).  The present appellant has been deprived of that opportunity and justice has therefore been denied to him. …

[39]     At 241-242 of Sankar, Lord Woolf said:

… The appellant had been deprived in reality of deciding whether or not he should give evidence or at least make a statement from the dock. It had never been explained to him how important his evidence would be to the outcome of the trial and that, without that evidence, in practice there was no defence. These were things he should most certainly have been told.

The fact that the appellant apparently said something to Mr Khan which embarrassed him in his further conduct of the defence did not mean that he was discharged from fulfilling these minimum obligations which any advocate owes to his client. Mr Khan, if what he was told made this necessary, could have withdrawn from the trial. Even then he would have been under a duty to explain the position to the appellant and place before the appellant the options which arose in consequence of the embarrassing position in which Mr Khan found himself. One of those options would have been for Mr Khan to withdraw from the case if the course that the appellant selected was inconsistent with Mr Khan’s duty to the court.  (our emphasis)

[40]     It is true that both McLoughlin and Sankar were cases in which trial counsel was faced with the potential dilemma of having to inform a Judge of a “problem” during the course of trial and seek leave to withdraw.  Although that did not, in fact, happen in this case it would, for the reasons we gave earlier, have been an inevitable consequence had K elected to give evidence at the conclusion of the Crown case.

[41]     The strict position taken in respect of the need to obtain informed consent when an election to give evidence is in issue has been confirmed both by this Court and in the High Court of Australia in recent years.

[42]     In R v Le CA208/00 14 September 2000 this Court said:

[29]      The decision of the Privy Council in Sankar v The State of Trinidad and Tobago [1995] 1 All ER 236 illustrates the point that where counsel so acts as to deprive an accused of the choice whether to give evidence or, in jurisdictions where this is allowed, a statement from the dock, an appellate court is highly likely to find that there has been a miscarriage of justice. The decision of this court in R v McLoughlin [1985] 1 NZLR 106 illustrates the

requirement that an accused be afforded “every proper opportunity to put his defence to the jury”, see the remarks of Hardie Boys J at 107.

[30]      On the other hand, it is the duty of defence counsel to advise their clients, sometimes firmly.  In a case where an accused has gone along with the firmly expressed advice that he or she should not give evidence despite knowing that he or she has a right to insist upon giving evidence, this cannot be regarded as a denial of the right to give evidence.

[43]     In  TKWJ  v  R  (2002) 212 CLR 124 HCA at 147, McHugh J, after acknowledging both that counsel in a criminal trial is “ordinarily instructed on the implied understanding that he is to have complete control over the way in which the case is conducted” and that “the discretion retained by counsel in the running of a case is very wide”, considered that if counsel does something that deprives an accused of a fair trial a miscarriage of justice will have occurred.

[44]     We  are  satisfied  that,  for  Sungsuwan  purposes,  Mr Turner’s  failure  (in obtaining general agreement to his trial tactics) to explain fully to K the consequence of effectively foregoing his right to an election amounted to an error that gives rise to a miscarriage of justice.

[45]     Nevertheless, we have a good deal of sympathy with the predicament in which Mr Turner found himself.  We have no doubt that the error arose out of what could be seen as reasonable trial tactics, as viewed through the eyes of trial counsel in a difficult case.  However, the fact that the appellant was effectively deprived of his election puts this case squarely within the situation envisaged in Sungsuwan, at [66]-[68] per Gault, Keith and Blanchard JJ.

Application of the proviso

[46]     Section 385(1)(c) of the Crimes Act 1961, provides that this Court must allow an appeal if it is of opinion that “on any ground there was a miscarriage of justice”.  However, that direction is subject to a proviso expressed in the following terms:

Provided that the Court of Appeal … may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the

appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

[47]     This was, on any view, a strong Crown case.   The intended evidence of K would have been subjected to considerable attack, given the medical evidence in relation to the assault.   In those circumstances, ought the proviso to be applied to preserve the convictions?

[48]     R v McLoughlin is authority for the proposition that when a fair trial issue arises it will be rare for the proviso to be applied.  Sankar is another example of a case in which the proviso was not applied; Lord Woolf at 242-243, observed:

It  cannot  be  said  that,  if  the  appellant  had  not  been  deprived  of  the opportunity of properly considering whether to give evidence or make a statement, he would have decided not to do so. At least if he had given evidence it is almost certain that the judge would have been under an obligation to leave issues of accident, self-defence and possibly provocation to the jury. What would have been the outcome if this had happened is pure speculation.

[49]     The most recent authoritative discussion of the application of the proviso in New Zealand is R v Howse [2006] 1 NZLR 433 (PC). In that case, the Privy Council held that a trial Judge had wrongfully allowed inadmissible and damaging hearsay evidence to go before the jury. The question was whether Mr Howse’s conviction on the murder charges could be saved by application of the proviso. By a 3:2 majority, the Privy Council held that it could.

[50]     There was no substantive difference between the majority and minority in Howse as to applicable law.  The guiding principles were accepted, by all members of the Board, to have been authoritatively stated in Wilde v R (1988) 164 CLR 365 (HCA) and Randall v R [2002] 1 WLR 2237 (PC).

[51]     In Wilde, a majority of the High Court of Australia (Brennan, Dawson and

Toohey JJ) said, at 372:

…, it was submitted that the question  whether  a  reasonable jury would inevitably have convicted does not arise where the error in the conduct of the trial is fundamental. In such a case, it was submitted, it does not matter what the strength of the prosecution case or the weakness of the defence case was. Reliance was placed upon what was said by Gibbs J in Quartermaine v The Queen (1980) 143 CLR 595, at pp 600 – 601:

‘Ordinarily, when there has been a misdirection of law, the proviso to s 689 [Criminal Code (WA)] will be applied if the Crown establishes that if there had been no misdirection the jury would (or must) have come to the same conclusion. However, Wickham J, who delivered  the  judgment  of  the  Court  of  Criminal  Appeal  in  the present case, recognized that even if this were established “there might still be a substantial miscarriage of justice if the trial was so irregular that no proper trial had taken place, in that ‘there had been a serious departure from the essential requirements of the law’ ”. The Court of Criminal Appeal was right in taking that view of the law ...’

This  view  is  undoubtedly  correct,  for  the  proviso  was  not  intended  to provide, in effect, a retrial before the Court of Criminal Appeal when the proceedings before the primary court have so far miscarried as hardly to be a trial at all. It is one thing to apply the proviso to prevent the administration of the criminal law from being ‘plunged into outworn  technicality’  (the phrase of Barwick CJ in Driscoll v The Queen (1977) 137 CLR 517 at p

527); it is another to uphold a conviction after a proceeding which is fundamentally flawed, merely because the appeal court is of the opinion that

on a proper trial the appellant would inevitably have been convicted. The

proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. If that has occurred, then it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial and that there has been a substantial miscarriage of justice. Errors of that kind may be so radical or fundamental that by their very nature they exclude the application of the proviso . . ..”

[52]     To similar effect, Lord Bingham of Cornhill, delivering the advice of the

Privy Council in Randall, said:

28  While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated  and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence  in  the  administration  of  criminal  justice,  if  a  standard  of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial  is  one  to  be  enjoyed  by  the  guilty  as  well  as  the  innocent,  for  a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.

[53]     The real issue in Howse was whether the admission of damaging inadmissible hearsay evidence was (to use Lord Bingham’s words) “so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty”.  Taking the view that the threshold should be “kept high, if the operation of the proviso is not to be stultified”, a majority    of    the    Board    in    Howse    (Lord    Hutton,    Lord    Carswell    and Sir Swinton Thomas) opined that the trial Judge’s errors were not so serious as to characterise the trial as unfair, so as to exclude application of the proviso: see [37]- [40].

[54]     On   the   other   hand,   the   minority   (Lord   Rodger   of   Earlsferry   and Sir Andrew Leggatt), applying the same principles, considered  that  the trial  was unfair.  The minority concluded:

[60]… Put shortly, the contention for the appellant was that things had gone so far wrong – as the Court of Appeal had shown – that the only possible conclusion was that the appellant had not had the kind of trial to which he was entitled under the law of New Zealand. There had therefore been a substantial miscarriage of justice and the appellant’s conviction should be set aside, irrespective of the strength of the evidence against him. Mr Pike, for the Crown, argued that, despite all the defects, the trial had been fair and this was an appropriate case in which to apply the proviso.

[55]     We are satisfied that this case falls on the “unfair trial” side of the line.  First, the decision to run the case in a manner inconsistent with the appellant’s proposed evidence was not explained to him fully.  Nor was he told that he was, effectively, foregoing his right to make an election to give evidence.   Secondly, we cannot speculate on how the complainant would have responded to cross-examination based strictly on K’s brief of evidence.  Nor can we speculate as to whether a reasonable jury might have accepted any evidence from K as, at least, giving rise to a reasonable doubt.  As has been emphasised often, an appellate court ought not to speculate on how a jury might approach relevant evidence: eg Bain v R (2007) 23 CRNZ 71 (PC) at 118.  Thirdly, had K elected to give evidence at the conclusion of the Crown case, inevitably that would have led to the jury being discharged for the reasons we have given earlier.  Accordingly, the proviso ought not to be applied.

Conclusion

[56]     For the reasons given, we allow the appeals against the convictions entered on counts 2 and 3 of the indictment.  We order a new trial on those counts.  Any questions  of  bail  are  for  the  District  Court  to  determine.    We make  an  order prohibiting publication in the news media or on the Internet or other publicly accessible database until completion of the re-trial.   Publication in a law report or law digest is permitted.

[57]     K remains convicted on the three charges to which he entered guilty pleas. The sentences imposed on those counts remain.  Any application in respect of those convictions will need to be made to the High Court in accordance with s 169 of the Summary Proceedings Act 1957.

Solicitors:

Crown Law Office, Wellington