R v Rohrlach CA272/03

[2004] NZCA 338

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1955

IN THE COURT OF APPEAL OF NEW ZEALAND

CA272/03

THE QUEEN

v

LEONARD MURRAY ROHRLACH

Hearing:         17 November 2003 Coram:      Elias CJ

Blanchard J Panckhurst J

Appearances: J J McCall for Appellant

A R Burns for Respondent Judgment:  28 April 2004

JUDGMENT OF THE COURT DELIVERED BY ELIAS CJ

The appeal

[1]    Leonard Murray Rohrlach was found guilty at trial of one count of sexual violation by rape and one count of sexual violation by unlawful sexual connection through anal penetration of the complainant. His defence at trial was that the complainant  had  consented  to  the  sexual  activity.  Rohrlach  was  sentenced  to 10 years imprisonment with a 5 year minimum non-parole period. Although initially

R V LEONARD MURRAY ROHRLACH CA CA272/03 [28 April 2004]

the appellant appealed against both conviction and sentence, the appeal against sentence was abandoned at the start of the hearing.

[2]  The grounds of the appeal against conviction are trial counsel error. The errors are said, individually and cumulatively, to amount to miscarriage of justice. They are:

•     The abandonment of defence opposition to a pre-trial application under s344A of the Crimes Act 1961 by which the Crown had sought a ruling that statements made by the appellant to a police officer, Detective Bracegirdle, and recorded by Detective Bracegirdle in his notebook were inadmissible. The appellant argues that the statements were inadmissible because obtained in breach of the New Zealand Bill of Rights Act entitlement to legal advice and in breach of rules of procedural fairness. In addition, the appellant contends that the record of the statements was inaccurate in two critical respects, damaging to the defence case of consensual sexual activity.

•     Trial counsel’s failure to obtain exclusion of hearsay evidence tending to explain why the complainant (contrary to her suggestion that the appellant had spiked her drink with alcohol) showed no traces of alcohol in blood and urine samples. The explanation was essentially the delay in obtaining the samples and on the hypothesis that the complainant had taken only a few sips of the drink, an hypothesis said by the appellant to be contrary to her evidence that she had drunk about a quarter of a medium sized drinks container.

•     Trial counsel’s failure to cross-examine the complainant effectively as to credibility by putting to her medical and ESR evidence inconsistent with her version of events because disclosing no injuries or drug and alcohol spiking of her drink.

•     Trial counsel’s failure to cross-examine Detective Bracegirdle at trial as to the accuracy of his record of two statements said to have been made by the appellant, the first denying any intercourse and the second, after taking legal advice, that he had been advised to say that the intercourse was consensual.

•     Trial counsel’s failure to put the appellant in a position to make an informed decision about whether he should give evidence.

The offending

[3]    The complainant was a young foreign English language student studying at university in Christchurch. The Crown case at trial was that the appellant had initiated contact with her in a university library and had suggested to her that he could assist her with her English language skills. Up to 11 meetings occurred between the complainant and the appellant following their initial contact. At some stage the appellant suggested to the complainant that she should become his girlfriend but she indicated that she was not interested in a relationship of that nature. They continued to meet. The appellant drove the complainant home on one occasion and on another occasion took her for a drive in his new car.

[4]    On 11 June the two met by arrangement at the library and left to go for a drive to look at the view of Christchurch from the Port Hills. On the way the appellant bought hamburgers and drinks.

[5]    The complainant’s evidence at trial was that she noticed the cola drink the appellant gave her had a taste like wine. She said she drank about a quarter of the medium sized paper container. The complainant gave evidence that she felt hot as they were driving towards the Port Hills but was unable to open the window because the handle was broken. There was some photographic evidence, relied upon by the appellant as bearing on the complainant’s credibility, that the window handle was intact.

[6]    When they reached the Port Hills they ate the hamburgers at one site and then moved to another. The complainant became worried. She suggested they go home. The appellant made some show of not being able to start the car. The complainant got out of the car and tried to use her cellphone to call for a taxi or some friends. At that stage the appellant grabbed her arm, pulled her to the back of his car, a station wagon. The appellant pulled her clothes off and, after laying the complainant in the

back of the station wagon, had sexual intercourse with her vaginally and then anally.

[7]    The appellant then drove the complainant home, suggesting as he dropped  her off that she should become his girlfriend. She pretended to agree and arranged to meet him two days later at the library.

[8]    The complainant immediately telephoned her boyfriend and asked him to come to her flat. When he arrived she told him what had happened. Both then went to the police station and laid the complaint which led to the charges. Detective Bracegirdle interviewed the complainant and described her as having been “visibly upset and crying”. She was examined by a doctor who took body samples from her but who detected no injuries. Four days later the complainant saw another doctor who saw bruising on her arms and body which was consistent with her account of what had happened. In evidence the second doctor explained that bruising could  take some days to develop.

The admissions at police interview

[9]    Attempts by the police to locate the appellant were unsuccessful. The cellphone number he had given the complainant turned out to be false. Enquiries at the library were also unsuccessful.

[10]   The police arranged with the complainant that she would keep the appointment made to meet the appellant in the library. The police waited with her. The appellant approached the library, behaving rather oddly for someone keeping an appointment. He did not immediately enter the library, after approaching it. He  asked one plainclothes detective standing outside for directions to another library on the campus. Eventually, he entered the library and approached the complainant. He was immediately spoken to by the police who invited him to return with them in a police car to Sydenham Police Station to answer questions about “an incident”. He agreed.

[11]   Detective Bracegirdle in his evidence at the trial said that on the car ride to the police station he cautioned the accused and advised him of his rights under the New Zealand Bill of Rights Act to refrain from making a statement and to consult a lawyer. At the police station at 7.10pm the appellant was shown into an interview room. At that stage he was again cautioned and told that he was not obliged to say anything and that he could consult a lawyer. The nature of the allegation made against him was not discussed. Detective Bracegirdle then left the room to provide a report to a senior officer. The appellant was left alone until Detective Bracegirdle returned at 7.46pm.

[12]   The Detective’s notebook record is in summary form for the most part. It records that when the Detective returned he first took details of the appellant’s name, address, date of birth, employment and marital status, and telephone number. There then followed a “general discussion about work-home life”. Only after that did the Detective discuss the accusation with the appellant. The appellant’s immediate response, as recorded by Detective Bracegirdle, was:

In response he states that he could not have had sex. He only just knows her.

Following that entry, Detective Bracegirdle noted that he “fully explained the circumstances to him again”. The appellant asked then for a cup of coffee. When Detective Bracegirdle returned with the coffee the appellant declined an invitation to be interviewed on video, saying he would rather give a written statement. He then asked to speak to a lawyer.

[13]   Following a telephone discussion with a lawyer (located after an after hours list of lawyers had been provided and some unsuccessful initial attempts to make contact) a separately recorded question and answer interview was undertaken, starting at 2114 hours. Against the same time Detective Bracegirdle noted in his notebook “statement begins”. Immediately after that in the notebook appears the following note:

HS      My lawyer said to say it was consensual – I had consensual sex with her. She took her own clothes off in the back of my car.

IS I don’t think you should be telling me what your lawyer said. That’s for you and your lawyer to sort through.

[14]   Apart from this one entry, the further notes in Detective Bracegirdle’s notebook are formal notes of the course and timing of the question and answer interview. The interview itself was recorded separately by hand by Detective Bracegirdle on sheets of paper. The reference to the appellant’s lawyer may have been prefatory to the interview despite having been recorded in the notebook as occurring after the statement began. It is not recorded in the question and answer transcript. That sequence accords with Detective Bracegirdle’s evidence at trial

A.  I re-entered the interview room after he’d finished the phone call, I began to sit down and put the header on a blank piece of paper for a statement, for the beginning of a statement, while I was writing the header, which includes the time, date, place of the interview, the accused stated “My lawyer said to say it was consensual, I had consensual sex with her, she took her own clothes off in the back of my car”, I replied, “I don’t think you should be telling me what your lawyer said, that’s for you and your lawyer to sort through.

Q. What happened after that, after he told you that his lawyer said to say it was consensual, and you were writing out this statement, what did you do.

A. I advised him that he probably shouldn’t be telling me what his lawyer had said, and that that was between him and his lawyer, and then we continued, and I just continued writing the beginning of the statement.

[15]   The notebook entries record short breaks at 2200, 2250 and 2355. The interview is recorded to have concluded at 1.25 am. Before the interview ended, the appellant signed both the interview notes and the Detective’s notebook, after being first asked to read them.

[16]   The question and answer interview is exculpatory of the appellant. In it the appellant maintained that sexual intercourse had taken place with consent. He acknowledged vaginal and anal penetration of the complainant in the back of the car, but with her consent. In one of the last questions recorded, the appellant was asked

Q. If it was consensual sex as you claim, why did you not tell me that until after you had spoken to your lawyer?

His response was

A. I was stunned.

The challenge to the notebook entries

[17]   The sole issue at trial was whether the Crown had proved lack of consent. The recorded question and answer interview with the appellant was helpful to the defence because it was admissible evidence in support of the appellant’s contention that the complainant had consented. At trial, defence counsel was able to stress the previous social contact between the two, the complainant’s willingness to go on outings with the appellant, the fact that the complainant had a boyfriend whose existence she had not disclosed to the appellant, and the apparent preparedness of the complainant to arrange a further meeting with the appellant after the alleged rape. The Crown case rested upon the complainant’s evidence. The medical and scientific evidence available was neutral. It was either reasonably consistent with consensual sexual activity or (as was the case with suggestions of drink-spiking) did not substantiate primary facts from which inferences could safely be drawn.

[18]   Against this background, the two notebook entries were damaging to the defence. The initial denial of any sexual intercourse was inconsistent with the defence of consensual intercourse. It left the appellant open to the Crown contention that he had lied to Detective Bracegirdle on the point and that his credibility on the exculpatory statement was therefore suspect. The lie could be suggested to show consciousness of guilt. It made the explanation of consent appear a late invention, when the seriousness of the appellant’s position became evident to him. That impression was strengthened by the second notebook entry as to the communication with the solicitor. The recorded note is capable of being taken to suggest that the explanation of consensual sexual activity was not the explanation of the appellant but the prompt of his lawyer.  The Detective’s own recorded response (“I don’t think  you should be telling me what your lawyer said”) suggests such lawyer prompt.

[19]   Mr Trainor, counsel for the appellant at trial, gave notice to the Crown that the admissibility of the notebook statements would be challenged. The Crown accordingly made application to the Court under s344A of the Crimes Act 1961 to have the question of admissibility of the statements determined before trial.

[20]   The grounds of the defence challenge to admissibility were not apparently communicated in writing. They may however be gathered from the written Crown submissions filed in support of the s344A application. They refer to an indication by defence counsel that there were breaches of the Judges’ Rules and breach of s23 of the New Zealand Bill of Rights Act 1990 by denial of effective communication of the right to counsel and reasonable facilitation of the exercise of the right. The Judges Rules relied on were Rule 2 (obligation to caution before questioning), Rule  3 (obligation to caution person in custody before questioning), Rule 7 (limiting cross-examination upon a voluntary statement), and Rule 9 (requiring statements wherever possible to be taken down in writing and signed after opportunity for correction). The Crown submissions denied any breaches of the Judges’ Rules or of s23 on the facts disclosed in the deposition evidence and evidence it was indicated would be called at the s344A hearing. They point to the two cautions given to the appellant before he was interviewed and confirmed at the beginning of the question and answer interview, the appellant’s exercise of his right to a lawyer before the question and answer interview was conducted, the absence of any basis for suggesting that the notebook entries (made at an early stage and recording discussion before the written interview was undertaken) were the result of improper questioning, and the evidence available that the notebook entries were shown to the Accused and that he signed the notebook as a true record

[21]   Mr Trainor, who was counsel consulted by telephone at the time of the interview as well as counsel for the trial, provided an affidavit filed by the Crown on the appeal in response to that of the appellant. Both affidavits were admitted by us  as evidence in the appeal. Mr Trainor indicates in his affidavit that the grounds of challenge pre-trial did not include a challenge to the accuracy of the statements recorded in the notebook. That is not surprising. The accuracy of the entries would usually be a matter for challenge at trial, not a ground for exclusion of the evidence.

[22]   Mr Trainor said that after considering the Crown written submissions he formed the view that the objection to the admissibility of the notebook entries would not succeed. The appellant, who had flown to Christchurch for the hearing, says in his own affidavit he was advised by Mr Trainor that the application on the point should not be pursued. There is a difference between the appellant and Mr Trainor  as to whether the advice was based upon Mr Trainor’s assessment that the matter was not important (as the appellant deposes in his affidavit in the appeal) or on his assessment that there was little prospect of successfully excluding the evidence (as Mr Trainor recalls the matter). Mr Trainor later wrote to the appellant confirming that the application for exclusion of the notebook entries had not been pursued “on your instructions”. While the appellant says this is not correct, his affidavit acknowledges acceptance of Mr Trainor’s advice, making the confirmation formally correct. The point is not however determinative of the appeal. The issue raised by  the appeal is rather whether counsel’s advice that the challenge should not be pursued was in error giving rise to a miscarriage of justice.

The appellant’s account of the notebook admissions

[23]   The appellant says in his affidavit that the notebook entry made by Detective Bracegirdle that he had denied having sex with the complainant is incorrect. He maintains that he said that he had not “raped” the complainant. The appellant maintains that he instructed counsel about the inaccuracy in the notebook  record.  Mr Trainor does not confirm that instruction. His actions in not challenging the accuracy of the notebook record at trial and in conceding at trial that the appellant had lied when he initially denied any sexual activity (described below at paragraph [26]) are not consistent with any such instruction.

[24]   With respect to the second notebook entry, the appellant says that the statement recorded is incorrect. Mr Trainor had not prompted the response that the sexual contact had been consensual. Rather, he had advised the complainant that, if he wanted to put the appellant’s own contention as to the complainant’s consent on the record, he should take the opportunity provided to make a statement to say so.

Mr Trainor in his affidavit does not controvert the appellant’s account of the advice he gave by telephone.

The trial

(1)     Cross-examination of the complainant

[25]   At trial, counsel for the appellant cross-examined the complainant at some length about the history of the relationship between the two and the events of the evening (including the amount she had drunk from the cup and her claim that the window-handle in the car was broken). It was put to her that she had consented to intercourse with the appellant and had made up the story about lack of consent and drink-spiking out of a sense of guilt because she had betrayed her boyfriend.

[26]   Counsel did not put to the complainant the ESR analysis of the residue in the drink cup. Nor did he invite her to comment upon the medical evidence about her physical condition when medically examined.

(2)     The notebook entries

[27]   At the depositions hearing, in preparation for the anticipated s344A application, counsel for the defence had cross-examined Detective Bracegirdle about the delays in providing an opportunity to the appellant to contact a lawyer and the time that had elapsed between his arrival at the police station and the conclusion of the interview. That was apparently to try to establish an evidential foundation for the expected s344A application. The line taken at depositions in cross-examination of Detective Bracegirdle was not pursued at trial once the s344A application was granted unopposed.

[28]   At the trial counsel did not challenge Detective Bracegirdle about the accuracy of either of the two adverse notebook entries. Indeed, as the  Judge recorded in his summing up, Mr Trainor conceded in his final address to the jury that the appellant had lied to Detective Bracegirdle in his “initial denial of any sexual contact at all”. The accuracy of the recorded suggestion of counsel prompt to say

that the sexual activity was consensual seems not to have been remarked upon at trial and was not the subject of cross-examination of Detective Bracegirdle.

[29]   In summing up, the Judge referred to the need to assess the credibility and reliability of the exculpatory statements the appellant made to Detective Bracegirdle:

[137]   As  we   heard   from   Detective   Bracegirdle   yesterday,   Mr Rohrlach’s initial response when the allegation was put to him was to say that he could not have had sexual intercourse with [the complainant] as he had only just known her. You will recall that,  after consulting with Mr Trainor by telephone, Mr Rohrlach then said to Detective Bracegirdle that his lawyer had said to say that it was consensual and that he had consensual sex with [the complainant], in the context of which [she] had taken her own clothes off in the back of his car.

[138]   The crucial point in this context relates to Mr Rohrlach’s initial response, which was of course that nothing of a sexual nature had occurred between [the complainant] and himself at all.

[139]   In his final address to you yesterday Mr Trainor acknowledged, and responsibly so, that Mr Rohrlach had lied to Detective Bracegirdle when he gave that initial denial of any sexual contact at all.

[140]   It would be natural to think that if someone has lied about something then that person must be guilty of an offence which relates to the lie.

[141]   However, you must be very careful as to the use to which you put the lie which Mr Rohrlach told in that initial denial to Detective Bracegirdle.

[142]   As I am sure you will all be aware from your own experiences of other people, a person may lie in various circumstances for various reasons, in particular because of embarrassment, out of panic or confusion, or because of a combination of those or other similar factors. Indeed, in the statement which Mr Rorlach made to Detective Bracegirdle he explained the lie which he had told as being because he was stunned, as he put it in the statement.

[143]   The important point to bear in mind in this context is that a lie which is told by an accused to the Police does not add to the case against him. You must not take the lie which Mr Rohrlach told to Detective Bracegirdle, when he denied having any sexual involvement with [the complainant], as supporting her credibility, as supporting the Crown case against Mr Rohrlach.

[144]   However, you are entitled to regard that lie as being relevant in respect of Mr Rohrlach’s credibility, in other words in respect of the credibility and the reliability of the account which he then gave to Detective Bracegirdle in the written statement, which you will have available to you during your deliberations.

[145]   That of course applies in particular in respect of the allegation in the statement that the sexual contact between Mr Rohrlach and [the complainant was fully consensual. In other words, and while it is a matter for you, and I emphasise that, you would be entitled to think that, if Mr Rohrlach told a lie as to whether sexual intercourse occurred at all, that may mean that he may have told other lies, for example as to whether or not [the complainant] consented to sexual activity. That is solely an issue for you.

[146]   Going back to what I said earlier, if you think that the lie really is of no significance at all and may have simply been an initial panicked response, then the lie goes out of the picture, and you do not take it not account at all.

[147]   On the other hand, if you think that the lie is significant in respect of the issue of the honesty of Mr Rohrlach’s account to Detective Bracegirdle, then you are entitled to take the lie into account in that context.

[148]   However, you must not use the lie to support the Crown case, to support your assessment of [the complainant’s] credibility. Her credibility stands on its own.

[30]   From the Judge’s summing up, it is clear that the Crown relied upon the fact that the appellant initially lied about the issue of sexual contact as support for its contention that the written statement made should be rejected as untruthful. The defence response was that, after an acknowledged initial lie which was the result of understandable panic or because the appellant was “stunned” (as he said in explanation at the time of the interview), the statement was clear and consistent as to consensual intercourse.

(3)        The suggestion of drink-spiking

[31]   The complainant in her evidence described the taste of the coca cola obtained for her by the appellant as “not like a coca cola, like a wine”:

So I ask him, “What is that?” and he said “It’s a new drink called Cherry Berry Coca Cola”

It was “red, deep red” and it tasted like wine. She drank “a quarter” of the paper container which was approximately 20cm high. After drinking some of the drink,  she felt hot.

[32]   Because there was some suspicion that the drink may have been laced with alcohol or drugs, samples of the complainant’s blood and urine were sent for analysis. The week before the trial Crown counsel spoke and wrote to Mr Trainor about the necessity to explain the results of the test. He expressed the view, recorded in a letter to defence counsel, that without such explanation the jury might be “left wondering whether there were drugs in the samples and they just had not been tested and the alcohol seems to produce an equivocal result”. Counsel proposed that a hearsay report could be given by Detective Bracegirdle of the result of the tests and their interpretation. That course was adopted with the consent of the defence.

[33]   Detective Bracegirdle, in evidence in chief at the trial, confirmed that he had obtained blood and urine samples from the complainant and had sent the samples to be analysed for drugs and alcohol. He explained that he had suspected that a drug might have been used because

From my experience and that of ah and other police members ah the reaction that the victim gave and her explanation as to the taste of the drink.

[34]   Detective Bracegirdle confirmed that the tests were negative, with no traces of drugs or alcohol. Nor did tests on the paper cup prove positive for alcohol or drugs. His evidence continued with the following question and answer

Q. Evidence is given by [the complainant] that  she  had  just  a couple of sips and didn’t have any more. Given that quantity consumed, what was the toxicology people and ESR’s thoughts on whether they would even find any alcohol in her blood or urine.

A.Their advice was that if two sips had been consumed in the    time period from the consumption to the testing ah to the obtaining of the blood and urine samples, that they would expect not to find any traces of alcohol in the blood or urine.

[35]   These questions were followed up by defence counsel in cross-examination. Detective Bracegirdle confirmed that the analysis undertaken was to look at drugs “including common date rape drugs and alcohol”. He also confirmed that he would have expected a positive drug result if drugs had been involved.

[36]   The evidence led by consent in this form therefore excluded any suspicion that date rape drugs or other drugs had been present in the drink: if they had been, they would have been expected to be detected in the complainant’s blood and urine at the time samples were taken. There was no alcohol detected in the samples but, if the complainant had taken only a few sips, the presence of alcohol could not be excluded even though there was no detectable trace of it at the time the blood and urine samples were taken.

[37]   In summing up to the jury, the trial judge did not refer to the issue of drink- spiking beyond repeating the defence contention, in his summary of the case for the defence, that “there was no proved presence of any substance in the drink which    Mr Rohrlach bought for [the complainant] in circumstances where, according to Detective Bracegirdle, that would have been expected”. No suggestion of drink- spiking featured in the Crown case, as summarised by the Judge.

(4)        The decision that the appellant should not give evidence at trial

[38]   It is conceded on behalf of the appellant that trial counsel advised him that ultimately the decision to give evidence was one for the appellant alone. Counsel advised that the decision whether to give evidence should be left open until as late as possible. He expressed the view however that the appellant “would be in some difficulty when it came to cross-examination”, an opinion apparently arrived at from his assessment of the appellant. Although no full brief of evidence was  prepared,  Mr Trainor at trial prepared brief notes from his interviews with the appellant from which to lead his evidence as to the association between appellant and complainant. Those notes, which were before us on the appeal, were slight and dealt principally with the background to the alleged offending. As for the events which gave rise to the charges, counsel noted simply that the appellant’s evidence would be “as per

statement”, in evident reference to the written statement made to Detective Bracegirdle.

[39]   Before the trial, the appellant acknowledges that his counsel went through the Crown deposition evidence with him. The trial itself began on 19 May and concluded on 21 May. On 20 May, before the defence elected not to call evidence, the appellant signed a statement recording his instructions to trial counsel that he would not give evidence.

[40]   On the appeal, the appellant contends that he was not put in a position to make an informed decision whether or not to give evidence. The accuracy of the two notebook entries (as to initial denial of intercourse and as to the suggestion of lawyer prompt to claim consent) could not have been effectively challenged without the appellant giving evidence. That needed to be the subject of advice from counsel if the appellant was to make an informed decision about giving evidence. The  appellant contends that the failure to advise him properly about the decision whether to give evidence was compounded by counsel’s earlier failure to cross-examine the complainant effectively as to her suggestions of drink-spiking and as to her lack of injuries and his failure to cross-examine Detective Bracegirdle as to the accuracy of the notebook entries.

Decision

[41]   The appeal is advanced on the basis that there has been a miscarriage of justice. No error in the Judge’s summing up or wrong judicial decision on any question of law is relied upon. Nor is it suggested that the evidence at trial is incapable of supporting the verdict. The miscarriage of justice claimed arises solely out of the conduct of the defence by counsel.

[42]   The legal principles to be applied where miscarriage of justice is said to arise from defence counsel conduct are not in dispute. Only radical error will lead to the conclusion that the trial has been unsatisfactory. It is not enough that other counsel might have adopted different tactics in the conduct of the case or even that there has been some negligence. It is only a mistake or failure that could well have prejudiced

the outcome of the trial that will amount to a miscarriage of justice (R v Horsfall

[1981] 1 NZLR 116, 123; R v Pointon [1985] 1 NZLR 109).

(1)        Abandonment of the s344A opposition

[43]   At the time the decision to abandon the objection was taken on the morning of the s344A hearing, defence counsel had read the Crown submissions in support of the application. The Crown relied upon the fact that the appellant had been advised of his right to consult a lawyer both in the police car on the way to the station and upon arrival at the station before the interview began. It also pointed to the fact that the notebook entries had both been signed by the appellant as a true record. The appellant’s request to speak to a lawyer followed immediately after the circumstances alleged by the complainant had been outlined for him, and indicated his understanding of the information earlier given to him. The Crown submissions relied upon the decision in R v Mallison [1993] 1 NZLR 528 that any duty to facilitate exercise of the right to a lawyer does not arise until a request to exercise the right is made. The questioning of the appellant stopped while arrangements were made for him to obtain legal advice, as soon as he had made the request to speak to a lawyer. It was well open to defence counsel, when appraised of the facts and arguments relied upon by the Crown, to take the view that the opposition to admissibility based on the grounds foreshadowed would not succeed and to abandon the objection. This was a tactical decision, taken on sound grounds.

[44]   Even had the argument against admissibility been strong, a decision not to challenge the statements could not be said to have been an error which could well have prejudiced the outcome of the trial. The two entries said to be damaging to the defence were in reality challenged for accuracy, not because of their inadmissibility as a matter of fairness or Bill of Rights Act breach. The written statement taken after legal advice had been sought by the appellant was exculpatory and, if believed, substantiated the defence of consent. The accuracy of the record could be challenged at trial.

[45]   The abandonment of the defence objection to the admissibility of the notebook admissions was taken by counsel on a view of the merits of the Crown application which is not shown to have been wrong, much less in radical error.

(2)        Consent to admission of hearsay evidence of ESR testing

[46]   The hearsay evidence that the ESR testing revealed no trace of drugs or alcohol in the complainant’s blood and that drugs could have been expected to be detected in the circumstances was evidence that was important for the defence to get before the jury. It provided a basis for challenging the credibility of the complainant because her evidence had suggested drink-spiking. Drugs were positively eliminated by the evidence. The suggestion that a “few sips” of alcohol might not have been detected, was not unhelpful to the defence because of the complainant’s evidence that she had drunk a quarter of the container. There is no suggestion of any benefit which could have been obtained by the defence through the calling of the ESR analyst rather than through putting the material before the Court in the way agreed between counsel. No prejudice to the appellant is shown in the course of action adopted.

(3)        Failure to cross-examine the complainant as to the medical and ESR evidence

[47]   The appellant contends that the medical evidence (to the effect that the complainant had no visible physical injuries when examined within 24 hours of the incident) and the ESR report (excluding drugs and unable to substantiate alcohol in the drink) should have been put to the complainant in cross-examination to challenge her credibility. Although the credibility of the complainant was the central issue in the case, it is impossible to accept that the defence challenge to her credibility would have been enhanced by putting such evidence to her for comment. The medical evidence was that absence of discernible injury was not inconsistent with non- consensual sexual activity of the type described by the complainant. Indeed, there was evidence that bruises could take some time to develop and evidence of one doctor that the complainant showed bruising 4 days after the incident. Defence

counsel may rightly have decided it would be unwise to highlight such evidence. In the case of the ESR analysis, the evidence was helpful to the defence attack on the credibility of the complainant and was the basis of a submission to the jury, summarised by the Judge. It is not explained on behalf of the appellant how inviting the complainant to comment upon the evidence would have assisted the defence case. We are satisfied that no prejudice in the trial resulted from defence counsel’s approach.

(4)        The failure to challenge the accuracy of the notebook record of the appellant’s statements

[48]   Detective Bracegirdle was not challenged as to whether his record that the appellant had initially denied having sexual intercourse at all with the complainant was correct. In his affidavit, the appellant says that he instructed his counsel that the record, and Detective Bracegirdle’s evidence based upon it, was wrong. He says that he told the Detective that he had not “raped” the complainant. In addition, the appellant says he instructed his counsel that Detective Bracegirdle had wrongly recorded as his answer the later explanation that his lawyer had “told” him to say  that the intercourse was consensual. In his affidavit in response, Mr  Trainor indicates that the challenge to the admissibility of the notebook entries was made on the basis of lack of access to counsel and breaches of the Judges’ Rules, rather than on the basis of errors in the record. He said that at trial he “did not seriously  consider asking questions regarding the notebook entry but [did] not accept that this would in any way have injured the Appellant’s case”.

[49]   As the Judge’s summing up at paragraph [29] above indicates, the fact of the initial lie on the subject of whether any intercourse had taken place was a significant part of the Crown case in urging rejection of the appellant’s exculpatory statement.  It is unfortunate that Mr Trainor does not distinctly say in his affidavit whether his instructions were that the two entries were incorrect. Mr Trainor’s indication that he did not “seriously” consider questioning the notebook entries at trial and his assessment that such challenge would not have assisted the appellant may suggest the adoption of trial tactics by counsel without seeking instructions on the point. If so, the appellant may have been deprived of an opportunity available to him to

challenge the accuracy of the notebook entries. Since the evidence is equivocal, we think it preferable to consider the matter on the assumption that counsel may have failed to act on instructions on the point. Such failure is not however determinative of the issue for the appeal of whether there has been trial error giving rise to a miscarriage of justice (R v Palmer, unreported Court of Appeal judgment, delivered 30 May 2001, CA461-00 para [3]).

[50]   A challenge to Detective Bracegirdle’s evidence on the accuracy of the notebook entries would have required the appellant to give evidence. The question  of counsel error in failing to challenge the notebook accuracy is therefore linked with the question whether counsel put the appellant in a position to make an informed choice whether to give evidence. If counsel had been advised that the notebook entries were disputed by the appellant, he should have sought instructions on whether to challenge Detective Bracegirdle about his record. It would have been necessary for the appellant to be advised of the considerations bearing on the decision including the need for him to give evidence if the challenge were to be made.

[51]   For the purposes of the appeal, it is not enough however that the appellant might have been deprived of a decision which he was entitled to make himself. The question for us is whether the decision by counsel not to challenge the accuracy of the record was a mistake which could well have prejudiced the outcome of the trial. We are satisfied that it was not.

[52]   In the first place, there was no serious prospect of success in the challenge to the initial denial of sexual intercourse, as counsel recognised. That appears from the context of the full response and the appellant’s subsequent explanation of why he had earlier not acknowledged having had intercourse with the complainant. The appellant’s denial of rape (but not of intercourse), as he maintains his answer should have been recorded, makes no sense given his further elaboration that he “only just knows” the complainant. The record of the explanation was not challenged by the appellant in his evidence on the appeal or by his counsel in argument on the appeal. It is a non sequitur in explanation of a denial of rape. But it is very much in point in  a denial of having had a sexual connection with the complainant. The appellant’s

later explanation in the question and answer interview (the accuracy of which is not questioned) that he had not acknowledged consensual sexual activity until after speaking to his lawyer because he was “stunned” is consistent with such earlier denial of intercourse.

[53]   Apart from the contextual improbability of the appellant’s version, there were a number of matters to be weighed in deciding whether to challenge the accuracy of the notebook denial of sexual intercourse. The initial denial that sexual activity had taken place was not of itself inconsistent with a truthful later explanation of consensual sexual activity as the judge at trial had been bound to point out, consistently with established authority. That was the background against which the risks of challenging the notebook entry had to be weighed.

[54]   The appellant had given an immediate explanation of the apparent initial lie (that he had been “stunned”) the plausibility of which counsel knew would be reinforced by the Judge as a matter of usual jury direction. The fact that the explanation had been given promptly, during the course of the interview, was helpful to the appellant both because it was clearly not a later invention and because it came in as evidence, not submission, without requiring the appellant to give evidence at trial.

[55]   An attack on the accuracy of the record would have required counsel to cross- examine Detective Bracegirdle and would have required the appellant to give evidence. If the appellant was not believed on the point, the credibility of both his direct evidence as to the offence and his exculpatory statement would have been seriously undermined. Counsel may well have taken the view that the appellant was unlikely to improve on his statement when giving evidence at trial on the events giving rise to the charge and that the risk of calling him to challenge a collateral matter, as well explained as it could have been, was a risk not worth running. It could have highlighted the question of initial deceit.

[56]   These were matters counsel should properly have discussed with the appellant and obtained his instructions upon. But, on the assumption that proper instructions as to the course to be followed were not taken (a matter we are not able

to determine), the failure of itself does not make the conviction unsafe. The decision to acknowledge an initial lie, induced by panic, was a decision of trial tactics. There were sound reasons in support of the decision. It is not shown to have been wrong. Much less is it shown to have been a decision that could well have prejudiced the outcome of the trial.

[57]   The second claimed error in the notebook was the recorded answer that the appellant had been “told” to say that there had been consensual sexual intercourse by his lawyer. We doubt that there was any real risk of this equivocal entry being regarded as a prompt by the lawyer to invent consent. From the sequence and from the later comment of the appellant in explanation of his delay in proffering the acknowledgement of consensual intercourse (that he had been “stunned” when first confronted with the allegation) it would have been clear that the advice was merely to give the police the appellant’s own account immediately. Tellingly, as the Judge’s summing up at paragraphs [137] and [138] (above at paragraph [29]) demonstrates, that is the way the delay was treated at trial. It was never suggested that the later explanation of consensual intercourse was the idea of the lawyer. Plainly, the note or Rohrlach’s own words were clumsy in conflating the advice to give his own account immediately with the central point of the account (that sexual intercourse was consensual). But no one at the trial placed any importance on a literal interpretation of the words and the jury would not have understood it in that way.

[58]   For these reasons, we consider that the decision not to challenge the accuracy of the notebook entries is not shown to have been an error and does not amount to a miscarriage of justice.

(5)        The election not to give evidence

[59]   Apart from the question of the contested notebook statements, the decision that the appellant would not give evidence was a judgment to be exercised in the context of the trial. There is force in the appellant’s submission that, although the formal decision was left to him and was not finally taken until a late stage in the trial, the lack of preparation of a detailed brief suggests that counsel was extremely reluctant to call him.

[60]   The appellant acknowledges that he knew the reluctance stemmed from counsel’s view that he would make a poor witness. That was an important consideration in a trial where evidence of the defence contention was before the jury in the form of a statement which was exculpatory, if believed. There is no  suggestion that the appellant had additional evidence to give on any material point or that there was Crown evidence which could only be answered by him. The case is therefore very different from the circumstances in R v L (CA295/99, 28 October 1999) where a confession by the accused required answer if he was to have any prospect of acquittal.

[61]   In the present case, although perhaps the appellant was left with the impression that the advice he received was somewhat perfunctory, he was in possession of the information he needed to make the decision not to give evidence: there was no material evidence he could give to add to the defence evidence in his statement and his counsel considered that his case would be undermined because there was a real risk he would not make a good impression. The decision is not shown to have been an error entailing risk of miscarriage of justice.

Result

[62]   We are of the view that the conduct of the defence does not disclose errors which, individually or cumulatively, could amount to a miscarriage of justice. The appeal is accordingly dismissed.

Solicitors:

Papprill Hadfield and Aldous, Christchurch for Appellant Crown Solicitor, Auckland