R v Tamanui

[2007] NZCA 19

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (OTHER THAN THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA118/06 [2007] NZCA 19

THE QUEEN

v

BARNEY TAMANUI

Hearing:         21 February 2007

Court:            William Young P, Randerson and Harrison JJ Counsel:          W C Pyke for the Appellant

K Raftery for the Crown

Judgment:      21 February 2007         at 2.15 pm

JUDGMENT OF THE COURT

A          The appeal is allowed and the convictions are quashed. B          We direct a retrial.

COrder prohibiting publication of the judgment and any part of the proceedings (other than the result) in news media or on Internet or other  publicly  accessible  database  until  final  disposition  of  trial.

Publication in Law Report or Law Digest permitted.

R V BARNEY TAMANUI CA CA118/06  21 February 2007

REASONS OF THE COURT

(Given by William Young P)

Introduction

[1]      Barney Tamanui was found guilty by a jury in the District Court at Hamilton on two counts of rape and one count of indecent assault.  He was later sentenced to

10 years imprisonment.   He now appeals against his conviction, an appeal which primarily turns on whether the failure to call character evidence at his trial resulted in a miscarriage of justice.   There were other arguments presented but given the conclusion we have reached, there is no need to discuss them.   It is, however, necessary to discuss briefly the relevant context in which the character evidence issue falls to be determined.

The relevant context

[2]      The alleged offending occurred between 3 December 2001 and 20 February

2002 at a time when the complainant was nine years old.  The appellant was a friend of the complainant’s family.  The alleged offending came to light in late 2004.

[3]      The case very much came down to the word of the complainant against that of the appellant who both made an exculpatory statement and gave evidence at trial. His evidence was generally supported by that of his partner.

[4]      The appellant has a conviction for forgery which goes back to 1977 and is irrelevant for present purposes.   He has no other convictions.   So he is properly regarded  as  a  man  of  good  character.    There  are  a  number  of  people  in  the community who  could  have  given  character  evidence  for  him  and  indeed  have provided such evidence for the purposes of this appeal.  Their affidavits thus indicate the sort of evidence which could have been called at trial and there can be no doubt that it would have been very valuable had it been led before the jury.  But at trial no

such evidence was given.  Indeed neither the police officer who gave evidence nor the appellant were even asked about his good record.

Did the failure to call character evidence at trial result in a miscarriage of justice?

[5]      The appellant and his trial counsel (Mr Michael McIvor) discussed prior to the trial the possibility of character evidence being led.  On the basis of the evidence we heard from Mr McIvor and the appellant and our assessment of the probabilities, we conclude that Mr McIvor endeavoured to explain to the appellant that written references would not suffice.  We also accept that Mr McIvor considered that it was for the appellant to organise any character witnesses he wished to have called and to arrange for them to be at Court.  The appellant’s evidence on this was perhaps a little confused but the general drift of what he said was that he in effect left everything to counsel.  For reasons which we will come to, it does not matter whose understanding of the arrangement was correct.   What is important for present purposes is that no-one organised character witnesses to be present and to give evidence and no such evidence was adduced.

[6]      This was a “she says: he says” case, turning entirely on the jury’s assessment of the credibility of the two main protagonists, the complainant and the appellant.  In this context, character  evidence was  potentially of  high  significance  and  it  was therefore incumbent on defence counsel to take a more proactive line than he did. The significance of the evidence had to be discussed with the appellant.   If the gathering of the evidence was to be left to the appellant, Mr McIvor should have checked on progress and, when no character witnesses materialised, Mr McIvor should have made inquiries as to where they were.  Indeed, the position as to what evidence  could  be  led  and  the  arrangements  which  were  necessary  for  the appropriate witnesses to be available required focused consideration both before and during trial.

[7]      We do  not  wish  to  be  critical  of  Mr  McIvor (who  in  all  other  respects conducted the trial competently and carefully) but we are left with the view that it was not satisfactory for the issue simply to be left hanging.  The appellant is not a

particularly sophisticated man.   There was necessarily a real possibility of a misunderstanding as to who was to do what.  The failure of the appellant to come up with witnesses prior to (or even at the commencement of) the trial should have suggested to Mr McIvor that there had been such a misunderstanding.  Our sense, however, is that Mr McIvor had, by then, lost sight of the issue.  We say this given the absence of any mention at trial of the appellant’s good record, something which could have been raised despite the absence of character witnesses.

[8]      In Teeluck and John v The State [2005] UKPC 14, a case which was in some respects similar to this one, the Privy Council set out the principles which apply where character evidence is led:

33.      … Their Lordships consider that the principles which are material to the  issues  now  before  them  can  conveniently  be  encapsulated  in  the following series of propositions:

(i)        When a defendant is of good character, ie has no convictions of any relevance or significance, he is entitled to the benefit of a good character direction from the judge when summing up to the jury, tailored to fit the circumstances of the case: Thompson v The Queen [1998] AC 811, following R v Aziz [1996] AC 41 and R v Vye [1993] 1 WLR 471.

(ii)       The  direction  should  be  given  as  a  matter  of  course,  not  of discretion.  It will have some value and will therefore be capable of having some effect in every case in which it is appropriate for such a direction to be given: R v Fulcher [1995] 2 Cr App R 251, 260. If it is omitted in such a case it will rarely be possible for an appellate court to say that the giving of a good character direction could not have affected the outcome of the trial: R v Kamar The Times, 14 May 1999.

(iii)     The standard direction should contain two limbs, the credibility direction, that a person of good character is more likely to be truthful than one of bad character, and the propensity direction, that he is less likely to commit a crime, especially one of the nature with which he is charged.

(iv)      Where credibility is in issue, a good character direction is always relevant: Berry v The Queen [1992] 2 AC 364, 381; Barrow v The State [1998] AC 846, 850; Sealey and Headley v The State [2002] UKPC 52, para

34.

(v)       The defendant’s good character must be distinctly raised, by direct evidence from him or given on his behalf or by eliciting it in cross- examination of prosecution witnesses: Barrow v The State [1998] AC 846,

852,  following  Thompson  v  The  Queen  [1998] AC 811, 844. . It is a necessary part of counsel’s duty to his client to ensure that a good character

direction is obtained where the defendant is entitled to it and likely to benefit from it.  The duty of raising the issue is to be discharged by the defence, not

by the judge, and if it is not raised by the defence the judge is under no duty to raise it himself: Thompson v The Queen, ibid.

We note that this statement is consistent with New Zealand practice, see R v Wade CA237/05 8 December 2005 at [17].  A little later in the judgment, their Lordships turned to the consequences of John’s counsel not having led available evidence of his good character:

36.      … His counsel could and should have ensured that the issue was raised so that John could obtain the benefit of the good character direction to which he was entitled.  It was clearly material in the trial, for his credibility was of material importance in the issue of the conflict between his evidence and that given on behalf of the prosecution in relation to his treatment in police custody and the making of the confession statements attributed to him. …

38.      … It should now be regarded as established law that in some circumstances  the  mistakes  or  omissions  of  counsel  will  be  a  sufficient ground to set aside a verdict of guilty as unsafe. …

39.      In Sealey and Headley v The State [2002] UKPC 52 at paragraph 30 their Lordships stated, citing R v Clinton [1993] 1 WLR 1181 and R v Kamar The Times, 14 May 1999:

“Whilst it is only in exceptional cases that the conduct of defence counsel can afford a basis for a successful appeal against conviction, there are some circumstances in which the failure of defence counsel to discharge a duty, such as the duty to raise the issue of good character, which lies on counsel ... can lead to the conclusion that a conviction is unsafe and that there has been a miscarriage of justice

...”

There may possibly be cases in which counsel’s misbehaviour or ineptitude is so extreme that it constitutes a denial of due process to the client.  Apart from such cases, which it is to be hoped are extremely rare, the focus of the appellate court ought to be on the impact which the errors of counsel have had on the trial and the verdict rather than attempting to rate counsel’s conduct of the case according to some scale of ineptitude: see Boodram v The State [2002] 1 Cr App R 103 at para 39; Balson v The State [2005] UKPC 2; and cf Anderson v HM Advocate 1996 JC 29.

40.      Their  Lordships  are  of  opinion  that  this  case  falls  into  the exceptional category of those where the omissions of counsel had such an effect on the trial and verdict that it cannot be said with sufficient certainty that the conviction was safe.  The prosecution case against John depended entirely on the oral and written confessions attributed to him, the authenticity and reliability of which he strongly contested.  His credibility in making his allegations against the police was a crucial issue in the trial. That being so, it was vital for him to have the benefit, to which he was in law entitled, of both limbs of a good character direction from the judge.  Their Lordships do not find it possible to speculate about the view which the jury might have taken if such a direction had been duly given.  They cannot hold, however, that the

verdict of any reasonable jury would inevitably have been the same if it had been given. That is sufficient to make the conviction unsafe.

[9]      The approach taken by the Privy Council – particularly with its focus on effect rather than cause – is consistent with that adopted by the Supreme Court in Sungsuwan v R [2006] 1 NZLR 730. In the context of the present case – focusing primarily on the effect rather than cause but in a context in which we can see no good reason why character evidence was not called – we conclude that the failure to call character evidence means that there was a miscarriage of justice with the result that the appeal must be allowed.

Disposition

[10]     The appeal is allowed and the convictions are quashed.  We direct a retrial. We also make an order prohibiting publication of the judgment and any part of the proceedings (other than the result) in news media or on Internet or other publicly accessible database until final disposition of trial.  Publication in Law Report or Law Digest permitted.

Solicitors:

Meredith Connell, Auckland.