R v Manuchhima CA185/06

[2006] NZCA 508

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA185/06

CA410/06

THE QUEEN

v

DELIP MANUCHHIMA

Hearing:         28 November 2006

Court:            Chambers, Randerson and Potter JJ Counsel:  Appellant in Person

M T Davies for Crown

Judgment:      1 December 2006         at 3 pm

JUDGMENT OF THE COURT

A        Leave to appeal out of time against sentence is granted.

B        The appeal against both conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by Randerson J)

R V MANUCHHIMA CA CA185/06  1 December 2006

[1]      The appellant was convicted on 29 March 2006 on one count of sexual violation by rape after trial before Judge Bouchier and a jury. He was later sentenced to a term of imprisonment of eight years six months.   This was the appellant’s second trial.  In his first trial, he gave evidence on his own behalf but the jury could not agree.  At this second trial, on the advice of his then counsel, he did not give evidence.

[2]      Mr Manuchhima now appeals against conviction on the sole ground that he was not informed by trial counsel that the Judge would be likely to direct the jury that:

(a)     As he had not given evidence, the jury had not heard from him on oath and had not had the opportunity to hear first hand his account of events;

(b)     The only account of what he said was his statements to police officers;

and

(c)     The  jury  had  not  had  the  benefit  of  hearing  his  account  tested  in cross-examination.

[3]      Initially Mr Manuchhima appealed solely against his conviction but he later appealed out of time against sentence on the ground it was manifestly excessive.

Background facts

[4]      From the outset, Mr Manuchhima admitted having sexual intercourse with the complainant.  His defence was that she had consented.

[5]      The Crown case was that the complainant and Mr Manuchhima had been drinking alcohol together at her home.  The complainant became heavily intoxicated and fell asleep on the couch in the lounge.  The appellant had sexual intercourse with her while she remained in an unconscious state.   In her evidence, the complainant

said she did not recall having sexual intercourse with the appellant and that she definitely did not wish to do so.  She said she was unconscious at the time.

[6]      Mr  Manuchhima desisted  when  he  was  interrupted  by the  complainant’s

12 year old daughter who entered the room and, upon seeing her mother with her eyes closed with Mr Manuchhima on top of her, called 111.  When the police arrived the complainant was unresponsive and it was some time before she could be awakened.  She then told the police she could not remember what had happened and that if sex had occurred, she would not have consented to it.

[7]      When  interviewed  briefly  by  the  police  at  the  scene,  Mr  Manuchhima admitted having sexual intercourse with the complainant and made remarks to the effect that she was “out to it”.  He later made two statements to the police.  In the first  (made  on  the  day of  the  alleged  rape)  he stated  that  the  complainant  had consented to sexual relations as far as he knew.   He denied she was unconscious, saying she was half asleep and relaxing.  In his second statement to the police made five days later, he confirmed more positively that the complainant had consented to sexual relations and said he had also had consensual sex with her at her home on an earlier occasion.

The evidence at trial

[8]      The Crown called evidence at the second trial from the complainant and her daughter as well as a friend of the complainant who had been at the house on the day in question.  The Crown also called the police officers who attended the scene.  As well there was forensic evidence as to the level of alcohol found in blood samples taken from the complainant and Mr Manuchhima and  evidence as to the likely effects on the complainant of  a combination of  alcohol  and  drugs.    A  brief  of evidence was also read from the doctor who examined the complainant soon after the alleged rape.

[9]      Mr Manuchhima did not give evidence but called a witness in his defence who suggested there had been a prior sexual relationship between Mr Manuchhima and the complainant.

[10]     No  objection  was  taken  to  the  summing  up  but  it  provides  necessary background to the point Mr Manuchhima advances in support of his appeal against conviction.  Judge Bouchier directed the jury on the burden and standard of proof in the following terms:

The  next  general  point  and  it  is  the  most  important  is  the  burden  and standard of proof.   That has also been mentioned by the lawyers as well. The burden of proof of the essential ingredients of the charge is on the Crown.  It is on the Crown from the start of the trial to the end of it.  There is no burden on the accused at any stage to prove his innocence.  The accused does not need to give evidence.  In this case, he has chosen to do that.  There is no requirement on him to do that.  He has called the witness and because he has called the witness again there is no requirement on him to prove his innocence because the law is the Crown must prove each essential ingredient of that charge to the standard of beyond reasonable doubt before you can bring in a verdict of Guilty on the charge.

What does that mean being ‘beyond reasonable doubt’?  It simply means that you feel sure.  If you do feel sure of guilt then it is your duty to find him guilty.  But equally, if you are left with a reasonable doubt then it is your duty to acquit him.

[11]     The Judge later further directed the jury:

What the accused has said both orally and in written form to the police is not sworn evidence.  You have heard the manner in which those statements were made in the presence of the attending police officers and the two statements made to Detective Attwood.  They are properly part of the material for you to consider in the trial.   The truthfulness, accuracy and weight of those statements are for you.  You might attach different weight to different parts of those statements, or more importance to some matters in them than to other matters.  But that decision is entirely for you.

As I said earlier the accused is entitled to sit back and see if the prosecution has proved its case against him.  Where, as here, he has not given evidence, that means you have not heard on oath in the witness box and have not had that opportunity to hear first hand his account of the events of that day at Lake Road, hearing directly from him on oath as to what his involvement was in these events.  The only account is what he said to the police officers. You have not had the benefit of hearing his account tested in cross- examination.

But I should make it perfectly plain to you that by not giving evidence that does not prove anything and it does not add to the evidence against him. One thing you should not do is assume that he is guilty because he has not gone into the witness box and given evidence.

[12]     Both Mr Manuchhima and trial counsel (Mr M A Edgar) filed affidavits. Mr Edgar  was  cross-examined  before  us  by Mr  Manuchhima.    In  his  affidavit, Mr Manuchhima states:

At my first trial I gave evidence in which the jury would not agree on a verdict.

At the second trial my Counsel Mr Edgar discussed the issue of my giving evidence.   Mr Edgar was of the opinion that my evidence was in conflict with a number of prosecution witnesses.  He also was of the opinion that I was argumentative with the prosecutor.

I knew that the complainant’s consent to sexual intercourse was the only issue for the jury.  I was told by my Counsel that the jury would be made aware of that consent by way of my statements to the police.

I was  informed  by  my Counsel  that  I was  under  no  obligation  to  give evidence and that it was up to the prosecution to prove its case against me.

It was on that basis I gave my Counsel written instructions that I did not wish to give evidence at my second trial.

[13]     Up to that point, there is common ground between Mr Manuchhima and Mr Edgar.  However, Mr Manuchhima goes on to state that he was not told and did not know that the Judge would direct the jury to the effect identified in [10] above. Had he received that advice, he would have given evidence at his second trial.

[14]     Mr Edgar disputes Mr Manuchhima’s statement in that respect and states he told Mr Manuchhima that any police statement (as unsworn evidence) may not carry the same weight when compared with sworn witness testimony which is subject to cross-examination.  He states he would have given advice to Mr Manuchhima to this effect during discussions both prior to and during the course of the second trial.

[15]     In evidence before us, he added that he explained to Mr Manuchhima that the right to give evidence was his and that the final decision was his to make.  Under cross-examination, Mr Edgar also stated he told Mr Manuchhima he could change his instructions about giving evidence once the trial began.  He and Mr Manuchhima had  reviewed  that  decision  together  at  the  conclusion  of  the  Crown  case.

Mr Manuchhima  had  accepted  his  advice,  which  was  confirmed  by  the  written instructions he gave to Mr Edgar.

Discussion

[16]     Mr Manuchhima submitted he ought to have been advised by Mr Edgar of the directions the Judge would give the jury if he did not give evidence. While not criticising   the   Judge’s   directions,   he   submitted   he   was   prejudiced   through Mr Edgar’s failure to advise on this point.  In particular, he drew our attention to the fact that he had given evidence in the first trial which resulted in the jury being unable to agree.

[17]     We are satisfied the advice given by Mr Edgar to Mr Manuchhima was soundly   based.      We   have   read   the   transcript   of   the   evidence   given   by Mr Manuchhima  at  the  first  trial  from  which  it  is  obvious  that,  under  cross- examination,   he   repeatedly   responded   in   an   argumentative   fashion   to   the prosecutor’s  questions.    We  have  no  difficulty  in  accepting  the  assessment  of Mr Edgar, as an experienced trial counsel, that Mr Manuchhima had not fared well under cross-examination.

[18]     Both Mr Manuchhima and Mr Edgar were in a position to make an informed assessment on this issue by virtue of their experience at the first trial.  Consent was the sole issue and Mr Manuchhima had made it clear in both his police statements that  the  complainant  had  consented  to  sexual  relations.    On  his  own  evidence, Mr Manuchhima  accepts  he  was  informed  by  Mr  Edgar  that  he  was  under  no obligation to give evidence.  He made his election in that knowledge and on the basis of Mr Edgar’s advice.

[19]     It  is  unnecessary  for  us  to  resolve  the  difference  in  the  evidence  of Mr Manuchhima and Mr Edgar over the issue of the Judge’s likely directions to the jury if he did not give evidence but relied instead on his statements to the police.  We do not need to do so because we are satisfied there is no obligation on counsel to advise an accused of the standard trial directions given by Judges in circumstances such as this.  It is sufficient if an accused person is made aware that he or she has the

right but, is not obliged, to give evidence and that the decision in that respect is that of the accused and not counsel.

[20]     In the present case, Mr Edgar’s advice was appropriate and Mr Manuchhima made his decision not to give evidence accordingly.   Mr Edgar made it clear to Mr Manuchhima he intended to rely on the statements Mr Manuchhima had made to the  police  on  the  issue  of  consent.    That  was  a  tactical  decision  plainly to  be contrasted with Mr Manuchhima giving evidence upon oath.  Given his experience in the first trial, Mr Manuchhima was well placed to assess the advice given to him by Mr Edgar.

[21]     We   see   no   risk   of   a   miscarriage   of   justice   having   resulted   from Mr Manuchhima’s decision not to give evidence in the second trial on the basis of Mr Edgar’s advice.

The sentence appeal

[22]     The  Judge  noted  both  the  complainant  and  Mr  Manuchhima  had  been drinking  and  consuming  drugs.    There  was  a  reasonably  significant  amount  of alcohol  involved.     She  referred  to  the  evidence  that,  prior  to  the  rape,  the complainant  had  been  observed  slumped  over  a  car,  staggering  and  totally incoherent.       She    noted    that    the    complainant’s    daughter    had    observed Mr Manuchhima in the act of sexual intercourse with the unconscious complainant. After referring to the victim impact statements and the pre-sentence report, the Judge concluded:

In my view the aggravating features of this particular case are that there was an abuse of trust, the complainant was unconscious, how deeply can be seen, in my view, from what happened when the Police arrived.  I consider that the jury found that she was deeply unconscious.  The prisoner took advantage of her in her own home in her lounge when her 12-year old daughter had just returned home from school.  She was also of course, in my view, vulnerable.

I accept, as I have said at the start, Crown and Defence have pointed me to the relevant cases in relation to this matter.  In considering all factors and considering all factors as far as the accused is concerned, I am of the view that there is no reason to depart from the usual starting point of 8 years.  In terms of the seriousness of the matter (all cases of this nature are serious) but this does not have features of violence towards the complainant.  I must of

course take into account the effect on her, balancing that with the fact of her self-admitted drug and alcohol problem which she was quite candid about at the trial.

Therefore, taking the starting point of 8 years, I am of the view that an additional factor of 6 months should be added to that and the sentence is passed of 8 years and 6 months’ imprisonment.

[23]     Mr Manuchhima submitted that the sentence was manifestly excessive.  No weapon was involved and there was no violence towards the complainant.  He had previously been friendly with the complainant and their relationship had recommenced prior to the day in question.  He also submitted that the victim impact statements contained a number of false statements which may have influenced the Judge’s conclusions.

[24]     For the Crown, Mr Davies submitted that the sentence was well within range and referred us to several authorities involving the rape of an unconscious or deeply intoxicated person.  In A v R CA226/03 16 February 2004, a sentence of eight years was upheld on one count of sexual violation by rape, the appellant having been found guilty after trial.  This Court regarded the fact that deliberate advantage was taken of an unconscious woman to be a serious aggravating factor.  In Keremete v R CA247/03 23 October 2003, this Court similarly upheld a sentence of eight years on one charge of rape, the appellant having been convicted after trial.  The victim was vulnerable due to heavy intoxication and was asleep at the time.   This Court considered the facts were properly viewed as an aggravating feature observing that sexual violations of this type deserve their own condemnation given the advantage taken of an unconscious woman.

[25]     In N v R CA316/02 31 July 2003, this Court upheld a sentence of six and a half years on one count of rape in which the victim was woken from a deep sleep following an extended period of drinking to find the appellant having sexual intercourse with her.   Unlike the previous two cases, the appellant pleaded guilty shortly before trial.   The sentencing Judge had increased the conventional starting point of eight years imprisonment for a defended rape by one year to take into account the breach of trust implicit in the sexual violation of a person who had extended hospitality to the appellant and the fact that advantage was taken of the victim in a deep, intoxicated sleep.   This Court was not inclined to regard these

features as other than “typically serious features inherent in the offence of rape” but nevertheless upheld the sentence of six and a half years imposed by the Judge.

[26]     In the circumstances of the present case, we regard it as an aggravating factor that the appellant took advantage of the complainant in her own home while she was intoxicated following heavy drinking and smoking cannabis.  While she was in such a state, she was in no position to consent to sexual relations.  Mr Manuchhima was aware of that and proceeded notwithstanding.  He was aware that the complainant’s daughter was in the house and proceeded regardless of that fact as well.   Even allowing for Mr Manuchhima’s criticisms of aspects of the victim impact reports, it is clear that this incident has had a serious effect on both the victim and her daughter. We are satisfied the sentence of eight and a half years was within the available range.

Solicitors:

Crown Law Office, Wellington