R v K (CA197/07)

In the Court of Appeal of New Zealand, the appellant, K, was convicted on counts 2 and 3 of the indictment and appealed against the convictions. The appellant was found guilty by the jury of indecent assault and sexual violation by rape, but he pleaded guilty to assaulting the female complainant on two separate occasions and to breaching a protection order taken out against him by her. The appellant appealed on the grounds that the conduct of the defence case at trial led to a real risk of an unsafe verdict or an unfair trial, the accused ought not to have faced a charge of breach of the protection order at trial, the Crown ought not to have led evidence from a police officer to the effect that K declined to provide a statement, 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, and 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. The Court of Appeal found that the appellant's trial counsel had conducted the trial in a manner inconsistent with the appellant's proposed evidence and had not fully explained the consequences of doing so. The Court held that this amounted to a miscarriage of justice, and the appeal against conviction on counts 2 and 3 of the indictment was allowed. A new trial was ordered in respect of those counts.