R v P Ca103/02
[2003] NZCA 376
•4 March 2003
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA103/02
THE QUEEN
v
[P A P]
Hearing:18 February 2003
Coram:Elias CJ
Panckhurst J
Paterson JAppearances: R A Harrison for the Appellant
A Perkins for the Crown
Judgment:4 March 2003
JUDGEMENT OF THE COURT DELIVERED BY PATERSON J
Introduction
[1] Mr [P] was in February 2002 found guilty by a jury on five counts of a sexual nature namely:
(a)Two representative charges of indecent assault on a girl under the age of 12 years; and
(b)Three charges of sexual violation by rape of the same girl.
[2] On 6 March 2002 Mr [P] was sentenced to a total term of ten years imprisonment made up of terms of ten years for each of the three rape charges, and three years for each of the indecent assault charges, all terms to be concurrent. He now appeals against the conviction.
Grounds of appeal
[3] The appeal against conviction is on the grounds that there has been a miscarriage of justice. It is alleged that this arose from:
(a)The advice of his trial counsel that he should not give evidence; and
(b)Two witnesses who could have given relevant evidence on his behalf not being called. Leave is now sought to adduce on appeal the evidence of these two potential witnesses.
Relevant background
[4] The victim was Mr [P]’s stepdaughter. The indecent assault related to incidents which occurred when the complainant was aged between seven and eleven years, while the rape charges related to incidents when she was aged between eleven and thirteen years.
[5] Mr [P]’s defence to the charges was that they did not happen. The credibility of the complainant was the central issue. In this respect, it is noted that Goddard J, when sentencing Mr [P], noted:
“I can only say that, having seen and heard your stepdaughter give her evidence, nobody could have had any doubts as to her veracity and reliability.”
[6] Mr [P], after receiving advice from his counsel, elected not to give evidence. One of the factors which his counsel took into account, when advising Mr [P], was the possibility that Crown counsel would cross-examine him on an interview with his wife, the complainant’s mother, while he was in a police cell. His wife had hidden on her person a tape recorder and her conversation with Mr [P] had been transcribed. Mr [P] made several inculpatory statements during the discussion. Clearly, Mr [P]’s defence would have been undermined if Crown counsel had been able to cross examine him on what was said during that conversation.
The decision not to give evidence
[7] Mr [P] swore an affidavit in which he stated that he had wished to give evidence, but at the end of the Crown case his counsel told him that if he gave evidence, the Crown would “tear me to pieces.” Counsel advised him not to give evidence and he made his decision on the basis of that advice.
[8] Mr [P]’s evidence was that there were two conversations with counsel. During the first, in the courtroom, he was advised that if he gave evidence, the Crown would use the recorded conversation to cross examine him. Later, a further discussion took place in the cells. At that stage, he signed a written document which stated that he was happy with the conduct of his defence and that he did not wish to give evidence in his defence. In doing so, he relied upon the advice of his counsel to the effect that if he gave evidence, the recorded conversation would be used by the Crown to cross examine him. He said that this was the reason he elected not to give evidence.
[9] Mr [P] said in his affidavit that, if he had given evidence, he would have denied the allegations of the complainant, Further, he would have said the relationship with the complainant was close, that there was limited opportunity for the offending, and that in respect of the third rape charge, which was said to have taken place in Wanganui, the complainant was happy both in Wanganui and on her journey home.
[10] Trial counsel also provided an affidavit. He accepts that the decision whether Mr [P] would give evidence was not finalised until the end of the Crown case. That is his invariable practice. His recollection is that Mr [P] did not express a strong preference to give evidence and was prepared to be guided by his advice. He does not recall using the expression that the Crown would “tear him to pieces” but confirms that he advised Mr [P] that it was not in his interests to give evidence. In accordance with his invariable practice, he emphasised that the final decision was Mr [P]’s. Counsel’s evidence was that his advice to Mr [P] was based on several factors:
(a)He believed he had made an impact in cross-examination of the complainant sufficient to raise doubts as to her credibility;
(b)He did not believe that Mr [P] would present as a credible witness. His account of events to counsel had been contradictory, and he readily claimed a conspiracy against him by the complainant and her mother. He would become easily agitated and counsel was concerned he would become confrontational and evasive under cross-examination.
(c)Mr [P], whilst on the one hand denying sexual contact, would on occasions speak of the young complainant being seductive and to blame. Counsel was concerned Mr [P] may contradict the defence that counsel had been instructed to present.
(d)Advice from the Crown counsel that should Mr [P] give evidence, she may seek leave to cross-examine him on the taped transcript. He advised Mr [P] that he would oppose such an application but he was not confident that his opposition would be successful, notwithstanding the Crown’s earlier somewhat generous position. He noted he could hardly ask the trial Judge to make a preliminary ruling solely for the purposes of assisting a tactical decision whether or not to call evidence.
[11] Counsel stated that even if it had not been possible for the Crown to cross-examine on the taped evidence, he did not have confidence that Mr [P] would give evidence consistent with his instructions.
[12] The acknowledgement signed by Mr [P] confirmed:
(a)The had been advised of his right to give evidence personally in defence of the charges faced;
(b)He had decided he did not want to give evidence personally. He had discussed this decision carefully with counsel and he understood it was his choice;
(c)He had discussed calling other witnesses and had agreed which witnesses to call;
(d)He was happy with the way counsel had represented him and conducted the trial.
[13] In this Court, Mr Harrison submitted that trial counsel should have determined whether Mr [P] could have been cross-examined on the taped conversation with his wife. He submitted on the basis of R v Barlow (1996) 14 CRNZ 9, that Crown counsel would not have been permitted to cross-examine on the basis of the conversation with his wife. This was because Mr [P] had, pursuant to s 23(4) of the New Zealand Bill of Rights Act 1990, the right to refrain from making any statement. If the police, or an agent of the police, seek to elicit statements from a person, that right is infringed. It was submitted that in this case Mr [P]’s wife was acting as an agent of the Crown.
[14] While there was no conclusive evidence before us which suggested that Mr [P]’s wife was acting as an agent for the Crown, it appears likely that this was so. The tape recording ends with a discussion between the wife and a police officer immediately after the wife had left the cell. Mr Perkins, for the Crown, conceded before us that this may have been so, although he did not have instructions on this point.
[15] If the statements were elicited from Mr [P] with the approval, knowledge and possible direction of the police, which is likely, then in our view, Mr [P] could not be cross-examined on those statements if he had given evidence. The reasoning in Barlow would apply.
[16] Trial counsel’s view that he may not have been able to prevent cross-examination on the statement would not in these circumstances be correct. Further, if the police had been responsible for the interview and the taping of it, Crown counsel’s attitude in agreeing not to adduce the evidence was the correct one. A threat to possibly cross-examine on it would in those circumstances have been improper. We can however understand that in the course and heat of a trial, defence counsel would be apprehensive of the possibility that there could be cross-examination on what Mr [P] said and of the adverse effects on Mr [P]’s defence of such cross-examination.
[17] The uncontested evidence of trial counsel is that he did not have confidence that Mr [P] would give evidence consistent with his instructions, even if there were no cross-examination on the discussion with his wife. The other reasons given by trial counsel for advising Mr [P] against giving evidence are cogent. Mr Harrison submitted that Mr [P]’s only prospect of avoiding conviction was to have given evidence. We do not accept this. There were obvious risks to Mr [P] in giving evidence and a trial counsel has to balance the possible risks against the possible benefits and come to a decision. This he did in this case, albeit that he may have incorrectly assessed one risk.
[18] On Mr [P]’s behalf it was submitted that while trial counsel may have other valid grounds for advising against giving evidence, it is the effect of any particular piece of advice on the mind of the accused which is relevant. Mr [P]’s assertion in this case was that he would have given evidence if he had not been advised of the possibility of the cross-examination on his conversation in the police cells. We do not agree that the professed subjective views of the accused govern the position. Counsel’s competence must be judged objectively. Although Mr Harrison relied on what he said was a mistake by trial counsel, and not incompetence, an issue such as this should be determined on the basis of whether the actions of the counsel were in the circumstances appropriate. We are of the view that the advice he gave was justified and supported by other factors excluding the possible error on the right to cross-examine Mr [P] on the statements he made to his wife.
[19] In our view, trial counsel’s advice was generally appropriate and would have been given even if the cross-examination issue had not arisen.
The new evidence
[20] The background to the application to adduce new evidence was that Mr [P] and the complainant had been driven from Wanganui to Auckland, the day after Mr [P] allegedly raped the complainant, by a Mr Sauni and his partner. The evidence which they could give is that they had known Mr [P] for about six years, and had often seen him in the company of the complainant. Mr Sauni, who had been employed as a social worker, was prepared to give evidence that he observed closely the relationship between Mr [P] and the complainant. His evidence would be that there was never any indication that the complainant was unsure or uncomfortable around Mr [P]. It was quite the reverse. In respect of the trip back from Wanganui, he would say that the complainant was her normal self on the journey and that her behaviour and that of Mr [P] on that journey was just like a normal father-daughter relationship.
[21] Mr Sauni was interviewed by the police and a statement taken from him. He thought he would be required for the trial. Mr [P] approached him before the trial wanting to talk about the case and the trip to Wanganui. Mr Sauni felt uncomfortable and sought advice from the police who informed him that they were happy for him to talk to Mr [P], but it was his decision. He said he did not want to discuss the case with Mr [P] and told him so. He did this because he was a witness for the police and did not want to jeopardise his friendship.
[22] He was later told by the police he was not required to give evidence. Mr [P]’s counsel then approached Mr Sauni asking him to give evidence, but because of work commitments he declined to go to Hamilton. Mr [P]’s evidence was that when Mr Sauni declined to give evidence, he did not approach Mr Sauni’s partner.
[23] The evidence of trial counsel was that Mr [P] did not advise him of the existence of Mr Sauni and his partner until approximately one to two weeks before the trial. He was unable to advise counsel of their surnames or give him a contact number at that stage. Mr [P] explained that his attempts to obtain Mr Sauni’s assistance were rebuffed by Mr Sauni advising him that he was a Crown witness and could not be called. Counsel was given Mr Sauni’s phone number on the morning of the trial, or possibly a day or two before. He contacted Mr Sauni who had not been a witness at the deposition hearing, and made a plea that he come to Hamilton for the trial. Time constraints prevented the issue of a subpoena compelling Mr Sauni to appear. Mr Sauni was not prepared to come because of job commitments. His statement as a prospective Crown witness had not been disclosed to the defence and was first sighted on the first day of the trial when Mr [P]’s counsel raised the matter with the Crown prosecutor. Because Mr Sauni was unable to attend the trial, it was agreed between counsel that his statement would be read to the jury, and it was so read.
[24] Mr Harrison submitted that the personal appearance of Mr Sauni and his partner as witnesses would have supported Mr [P]’s defence. Mr Sauni’s social worker background would have given added emphasis to his evidence which would have been supplemented by his partner’s evidence that she had seen the complainant and Mr [P] walking arm in arm during the return trip from Wanganui. Finally, it was submitted that the combination of this evidence and Mr [P] not giving evidence had caused a miscarriage of justice.
[25] In assessing fresh evidence on appeal it must be asked whether that evidence is credible and cogent in the sense that if given along with the other evidence, the jury might reasonably have been led to return a different verdict: see R v Zachan (CA304/94, 11 August 1995). The evidence was available at the time of the trial but, in the particular circumstances, we would not withhold leave because of this availability.
[26] If the evidence had been given, it would have been credible evidence, but in our view, would not have been sufficiently cogent to have led to a different verdict from the jury. Although the statement of Mr Sauni which was read in Court was not exactly the same as the evidence which he said he would give, it was, in substance, similar. The statement read to the jury noted that both Mr [P] and the complainant seemed completely normal to Mr Sauni when they met him to travel back to Auckland after the alleged rape. Mr Sauni did not notice anything different about them. He noted that the complainant fell asleep about half an hour into the trip and he knew that as she suddenly stopped talking. At one of the stops on the way back to Auckland, Mr [P] and the complainant went and bought a gift for the complainant’s mother. Mr Sauni noted that “they appeared normal and went off together. They talked a lot about what they were doing.”
[27] In our view, it does not necessarily follow that a witness giving evidence in person creates a better impression than a witness whose statement is read by consent and not challenged by cross-examination by the other party. The fact that evidence favourable to an accused is accepted by the Crown may give that evidence added weight in the minds of the jury. Further, having considered the proposed evidence, we are of the view that it does not have the necessary cogency when considered with the evidence given at trial to suggest that the jury might reasonably have been led to return a different verdict. The essential point of the evidence, namely, the observation of the demeanour of the complainant, and her interaction with Mr [P] on the trip to Auckland, is made in the undisputed statement which was read to the Court. We do not think that the giving of evidence in person, and the cross-examination of Mr Sauni on it, would make that evidence appreciably more cogent. Nor do we see that his partner’s evidence would have that effect.
[28] The evidence of the complainant was that there was a series of sexual assaults committed by Mr [P] over a lengthy period. This offending was unknown to the complainant’s mother, Mr [P]’s wife. It would have been obvious to the jury that the demeanour of the complainant during this period did not alert her mother to what was happening. The jury accepted the complainant’s evidence. Experience shows in sexual abuse cases against young girls that often their demeanour is not what an impartial observer would expect from an adult so abused. The complainant in this case did not give evidence that she was tearful, emotional or showing animosity towards Mr [P] during the trip from Wanganui to Auckland. She denied she was happy and normal, but described herself as being “very quiet.” This is not inconsistent with Mr Sauni’s statement that she fell asleep “as she suddenly stopped talking.”
[29] In the circumstances the application for leave to adduce further evidence is dismissed.
Conclusion
[30] We are of the view that neither ground of appeal, whether considered individually or cumulatively, can succeed in this case. The appeal is therefore dismissed.
Solicitors
R A Harrison, Auckland
Crown Solicitor, Auckland
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