R v Narayan

[2007] NZCA 129

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA324/06 [2007] NZCA 129

THE QUEEN

v

SURYAE NARAYAN

Hearing:         15 March 2007

Court:            Robertson, Baragwanath and Venning JJ Counsel:      M Dyhrberg for Applicant

E M Thomas for Crown

Judgment:      17 April 2007         at 10.30 am

JUDGMENT OF THE COURT

The application for leave to appeal is granted but the appeal is dismissed.

REASONS OF THE COURT

(Given by Baragwanath J)

R V NARAYAN CA CA324/06  17 April 2007

[1]      The applicant applies for leave to appeal out of time against conviction by an Auckland District Court jury on a count of rape.  The Crown takes no point as to time but opposes the appeal on the merits.

[2]      The principal ground of appeal is that Mr Reece, leading counsel for the applicant at trial, failed to prepare his case properly, never advised him that he had the right to elect whether to give evidence, and did not prepare him properly for doing so.  A second and related ground is that counsel should have called his medical practitioner to give evidence establishing that at the time of the alleged rape he was suffering from a leg injury that prevented him from running.  A third ground is that the verdict of the jury was unreasonable and cannot be supported on the evidence.

Background

[3]      The complainant alleged that early one morning the applicant offered her a ride home from Fanshawe Street after she had been drinking in an inner city Auckland bar.  She said that after stopping at a BP service station and the Grey Lynn foodmart  to  buy  cigarettes  and  alcohol  he  drove  her  to  a  secluded  reserve  at Meola Road where he raped her before driving her to the street in which she lived.

[4]      A neighbour of the complainant said that at about 5 am he was disturbed by her banging loudly on his door.  She was sobbing, very distressed and agitated and trying  to  get  hold  of  other  neighbours,  one  of  whom  was  her  boyfriend. She complained of rape.

[5]      A  search  of  the  area  of  the  alleged  rape  revealed  items  from  the complainant’s handbag.  A vaginal swab revealed the presence of what was proved to be the applicant’s semen.

[6]      Mr  Narayan  waived  the  privilege  of  both  Mr  Reece  and  former  junior defence  counsel  Mr  Robertson.    The  applicant  and  both  counsel  were  cross- examined before us on their affidavits.

The applicant

[7]      When the complainant’s account was put to the applicant in a videotaped police interview the applicant he had no recollection of having met her.  He agreed that he was accustomed to pick up street prostitutes and take them to Meola Reserve for sex in exchange for money.

[8]      In  response  to  Mr  Narayan’s  claim  that  he  met  Mr  Reece  only  about four times before the trial and only for five to ten minutes each time just before going into court, Mr Reece deposed that he had appeared for the applicant on some ten occasions and that towards the end of October and in early November before the trial began on 14 November 2005 he spent a total of four hours with the applicant. When the evidence of Mr Reece was put to him the applicant acknowledged that he had seen Mr Reece at court about eight or nine times.

[9]      The applicant agreed that at the time of his interview he was  unable to remember  the  complainant  and  could  say  no  more  than  that  he  had  been  at Meola Reserve with women and had never raped anyone.  He asserted that when the trial began he did not know that his DNA had been found on the complainant.  It was only after the complainant had given evidence that he remembered the episode with her.

[10]     Mr Narayan said that English was not his first language.  He stated that after the Crown case closed Mr Reece said he would have to give evidence and that there had been no prior discussion about what he was to say; he had just been told not to worry.  Had Mr Reece discussed giving evidence with him he would have expressed deep concern about doing so.  He felt that as a result of going into the witness box he made a bad impression on the jury.

[11]     He said that he was very unhappy that his case was not prepared properly, as by discussion whether to call medical evidence, and that he was not prepared either for giving evidence or for deciding whether to do so.

[12]     Mr  Narayan  was  cross-examined  on  a  typed  brief  of  his  evidence,  the contents  of  which  he  agreed  he  had  provided.     It  covered  his  coming  to New Zealand, the contents of the videotape including his knee injury which had required him to see a specialist and an inability to run, his practice of picking up prostitutes and going to Meola Reserve, his denial of ever raping a woman, his denial of the complainant’s allegations of picking her up at Fanshawe Street, push starting his car at Meola Reserve, and refusing to take money he had offered.

Mr Reece

[13]     Mr Reece said that he had been talking with the applicant over the course of almost a year and prepared and took the applicant through the brief before he gave evidence.  He said that the applicant clearly knew the points he was to discuss and did do so in evidence.

[14]     The DNA evidence was discovered only after the video interview but was discussed with the applicant.  Mr Reece said he told the applicant before the trial:

…look…  you’ve  got  a  problem,  you’re  at  the  scene  but  you  can’t remember…

[15]     He stated that prior to trial the applicant was playing dumb and hoping for the best notwithstanding the DNA evidence.   He said that he consistently told the applicant that there was difficulty in simply relying on the videotape “because it’s too light, it’s too vague”.   He said that he did advise the applicant that he had a choice whether to give evidence, but because of the vagueness of his video statement it was in the applicant’s interests to do so.

[16]     Both   Mr   Reece   and   Mr  Robertson   said   that   Mr   Narayan   suddenly remembered the episode with the complainant during the course of her evidence in chief.

[17]      Mr Reece said that there had been no firm decision to call the applicant until after that event.  There was a 25 minute adjournment following the complainant’s evidence  in  chief.    Mr  Reece  said  that  he  received  his  instructions  to  call  the applicant orally in the presence of Mr Robertson and for that reason did not have them confirmed in writing.  He said that such evidence was needed:  to explain the condition of the applicant’s knee, which evidence was the subject of agreement with Crown counsel, who had been shown a medical certificate, that the Crown would not dispute that he suffered from such condition; to recount his denial of being at the Fanshawe Street car park or the BP petrol station; that he went to the Grey Lynn foodmart on the way to the scene; to deny the need to push start his car; and, importantly, to deny the rape.

Mr Robertson

[18]     Mr Robertson, like Mr Reece, is an experienced counsel.  He confirmed the evidence of Mr Reece that the applicant knew of his right of election and chose to give evidence.   He said that having had no recollection of the episode with the complainant his recognition of her during her evidence in chief “was like a light bulb going off in [Mr Narayan’s] head”.    He considered that the applicant was keen to give evidence and that, because of the applicant’s inability during the interview to recall the episode involving the complainant, it was in his interests to give evidence, without which there was no circumstantial denial.

Applicant’s submissions

[19]     Ms Dyhrberg submitted:

(i)       Counsel failure to advise the applicant and calling him without adequate preparation

(a)on the basis of the applicant’s evidence, he had never been advised he did not have to go into the witness box and expose himself to cross-

examination; his command of English was poor and  he presented badly before the jury;

(b)the Crown case was weak; there was no sufficient reason to expose him to having to give evidence, with his poor command of English;

(c)      there has as a result been a miscarriage of justice that requires  a retrial: R v Sungsuwan [2006] 1 NZLR 730 (SC); R v Thompson [2006] 2 NZLR 577 (CA).

(ii)      Failure to call medical evidence

[20]     Defence counsel could have called Mr Narayan’s medical specialist to show that  he  was  physically  unable  to  run  after  the  complainant  as  she  claimed. That would both have supported his account and have avoided the need for him to enter the witness box.

(iii)     The verdict was unreasonable

[21]     Ms Dyhrberg analysed the evidence and contended that it is so inconsistent with the complainant’s account that she must have been lying.   Accordingly, as stated in R v Lin CA467/05 19 October 2006 at [47], this Court should exercise its:

…overarching responsibility  to  intervene  on  appeal  where  there  was  no evidence to support a verdict or where a jury acting reasonably could not have come to the decision which it did: R v Ramage [1985] 1 NZLR 392 (CA)

Discussion

(i)       Counsel’s failure to advise the applicant and calling him without adequate preparation

[22]     We do not accept that the applicant was not properly briefed and advised as to his right of election.   It is consistent with the contemporary context that the

written brief was prepared, first, on the basis of the applicant being unable to identify the transaction before the complainant gave her evidence in chief and, secondly, in anticipation of what she would say.  Because of the applicant’s instruction to counsel that he did not recall the transaction, the document was necessarily open-textured, rather  than  specific.    The  transcript  of  Mr  Narayan’s  evidence  in  chief,  while concise, shows that the necessary points were covered.

[23]     We accept the evidence of Mr Reece, confirmed by Mr Robertson, that he informed the applicant of his choice whether to give evidence, although such course was unlikely to be realistic.   Although the semen linked the applicant with the complainant, he had made his denial of raping anyone, and if her evidence at trial of use of force appeared uncertain he might have been able simply to rely on his statement.   But if the complainant’s evidence of use of force appeared credible, failure to enter the box to make a direct denial of raping this woman would present high  risk  of  conviction.    There  would  simply  be  no  specificity  in  the  defence narrative before the jury.  The double theme of counsel’s account of the atmosphere of the discussion – a possibility of avoiding giving evidence and a likelihood of having to do so – accords with the facts as they presented themselves before the complainant gave her evidence in chief.

[24]     We do not accept that either the manner in which the applicant was briefed or the decision to call him gave rise to a miscarriage of justice.   There is force in Mr Reece’s observation that, given the lack of specificity in the statement, had he failed to call Mr Narayan he would have risked criticism for that decision.

[25]     The first ground fails.

(ii)      Failure to call medical evidence

[26]     This  point  is  linked  to  the first.    If there had been a  real  prospect  that Mr Narayan would not give evidence, in the absence of other means of putting his medical condition before the jury it would have been prudent for defence counsel to have the applicant’s medical specialist available to show that he was physically

unable to run after the complainant as she claimed.  That would both have supported his account and have avoided the need for him to enter the witness box.

[27]     But Mr Reece spoke to the doctor and secured agreement from the Crown not to complain of the failure to call him.  As a result the defence was spared exposure to the Crown’s cross-examination of the doctor immediately before final speeches as to why and how the complainant’s allegations were consistent with the medical condition of the applicant.  Given the decision to call the applicant there is no basis for complaint of miscarriage.

[28]     The second ground also fails.

(iii)     The verdict was unreasonable

[29]   Ms Dyhrberg’s analysis of the evidence focused on what she termed “indisputable evidence” from surveillance tapes and a checkout receipt that fixed the presence of the complainant and the applicant at Foodtown, Grey Lynn, at around

2.34 am to 2.50 am.  She prepared a careful chronology recounting the complainant’s movements  from  the  time  she  finished  work  at  5 pm  through  to  meeting  the applicant,  which  she  calculated  as  between  11.35 pm  to  1 am,  parking  on  the BP forecourt  and  driving  to   Foodtown  at  between  12.05  am   and   2.25 am. The BP video  system  did  not  reveal  a  vehicle  matching  that  of  the  applicant. Ms Dyhrberg submitted that the complainant had been unable to account for between

45 minutes and 1½ hours and that her credibility is, therefore, so suspect that this Court should find that the jury could not reasonably have rejected the applicant’s version that he picked up the complainant not in Fanshawe Street as she alleged but in Karangahape Road.  Ms Dyhrberg challenged the evidence of the neighbour who put the time of the complainant’s arrival at about 5 am.

[30]     Mr   Thomas   presented   an   alternative   chronology   consistent   with   the Foodtown data, although submitting that the recording devices had not been checked for accuracy.  He pointed to evidence that it is possible for a vehicle to drive onto the BP forecourt without being captured on videotape; that there is no evidence beyond

his  own  that  the  applicant  actually  entered  the  shop;  and  that  there  was  no confirmation either the correct videotape had been identified.

[31]     Against those submissions there is to be taken into account the evidence of the complainant, the vital DNA evidence of a sexual encounter with the applicant, the fact that items from her handbag were found at the reserve and her new jersey was ripped, and the fact of the consistency of her evidence with her conduct of making a prompt complaint.

[32]     The defence criticisms of the Crown case were no doubt made to the jury which rejected them.  We are satisfied that it was entitled to do so.

Result

[33]     The application for leave to appeal is granted but the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington