The Queen v Brian Dennis O'Connor

IN THE COURT OF APPEAL OF NEW ZEALAND

CA383/01

THE QUEEN

BRIAN DENNIS O’CONNOR

Hearing:	15 October 2002 and 4 February 2003
Coram:	McGrath J Baragwanath J Salmon J
Appearances:	C J Perrior for Appellant A E Kiernan for Crown on 15 October 2002 J C Pike for Crown on 4 February 2003
Judgment:	25 February 2003

JUDGMENT OF THE COURT DELIVERED BY SALMON J

On 4 October 2001 the appellant was found guilty after trial before a jury in the District Court of two charges of sexual violation and one charge of rape. He was found not guilty on a further charge of sexual violation. He was sentenced to nine years imprisonment.
An appeal was filed against both conviction and sentence. The appeal against sentence was abandoned.

Background

The complainant, who was aged 18 at the time, travelled from Auckland to Tauranga on a Saturday in February 2001. She spent the evening with friends and at about 1.30 a.m. on Sunday morning decided to hitch-hike back to Auckland. She was a short distance onto the express-way out of Tauranga when the appellant offered her a lift. The appellant, who lived at Mt Maunganui, said he could not sleep that night. He decided to go for a drive. At the time he picked up the complainant he had been driving around the Tauranga area for some time. The appellant told the complainant that he was travelling to Waihi and would take her there. She accepted his offer.
After a short time the discussion turned to cannabis and the appellant suggested that they return to his house where he could obtain some cannabis which they could later smoke. The complainant eventually agreed to this. The appellant returned to Mt Maunganui and parked his vehicle a little way from his house where his wife and children were asleep. He went into the house, obtained some cannabis and returned to the vehicle.
They then travelled back to Tauranga and towards Katikati. At the appellant’s request the complainant rolled two cannabis cigarettes. He said he did not want to smoke them in the car in case they were stopped by the police.
At some stage close to Katikati the appellant drove off the road. The appellant and the complainant got out of the car and smoked one of the cannabis cigarettes. The appellant then began to make sexual advances towards the complainant. She said that he inserted his fingers into her vagina on two occasions. He got her into the back of the car. There was contact between his tongue and her vagina and later, she says, he raped her.
The appellant’s defence was that the sex was consensual. He said that she offered to provide him with sex for money. He said that he promised the money, although in fact he did not have any. After the sexual acts the appellant told the complainant he had no money and he dropped her off just outside Katikati. She walked into the town and was able to obtain a further lift from a truck driver who took her through to Auckland.
The jury substantially accepted the complainant’s account with the results referred to earlier in this judgment.

The appeal against conviction

Mr Perrior, for the appellant, advanced a number of grounds of appeal. Several were abandoned either prior to or during the hearing. Those which were maintained were:
That the appellant’s counsel at trial failed to bring to the appellant’s attention the complainant’s previous convictions. The appellant submits that these convictions were directly relevant to the complainant’s character and credibility generally and should have been put to her. Credibility was a central issue in the trial.
Trial counsel failed to cross-examine or present evidence in relation to a cellphone call made by the complainant.
Counsel should have re-examined the appellant in relation to cross-examination concerning his original denial of sexual activity and his later admission that consensual intercourse had taken place.
Counsel should have called a Mr Warner, who made a statement to the police saying that he had seen the complainant in Katikati.
Counsel should have applied for a member of the jury to be stood down when advised by the appellant that he knew that person.
After four hours deliberation the jury returned to the Court and advised the Judge that they were having difficulty reaching a verdict. The Judge gave them a Papadopoulos direction. Mr Perrior submitted that it was apparent from the total length of the retirement of the jury (some seven hours) and their eventual decision to acquit on one charge, that they had considerable difficulty in reaching their verdicts. In this context the appellant claims that the failures by his counsel listed above, either severally or jointly, constitute sufficient reason for this Court to find that the jury’s verdicts were unsafe.
The appellant filed an affidavit in support of his appeal. His trial counsel filed an affidavit in response. The appellant filed an affidavit in reply. That affidavit raised for the first time the allegation that the appellant was not told of the complainant’s previous convictions prior to or during his trial. Mr Balme, the trial counsel, had not had an opportunity to respond to that allegation. The Court adjourned the hearing of the appeal and called for a further affidavit from Mr Balme specifically addressing that question.
In a minute issued on 16 October it was noted that if the factual issue was not resolved by that affidavit to the satisfaction of both counsel it would be necessary to hold a further hearing at which Mr Balme and the appellant would be cross-examined, so that this important factual question could be resolved. The affidavit was filed. It did not address the issue in an entirely satisfactory way. It became apparent that cross-examination would be necessary and time was provided in December of last year in Wellington. Because of disruption to flights by fog, neither Mr Perrior nor Mr Balme were able to get to Wellington. Accordingly, the resumption of the appeal was adjourned to 4 February this year.

Discussion

Complainant’s character
There is no doubt that credibility was a central issue in this trial. Both the appellant and the complainant had previous convictions. Those of the appellant extended back over many years, and included numerous convictions for dishonesty and for cannabis related offending. In 1990 and 1991 he was convicted on several occasions for assault, including two convictions for assault on a female and one for assault on a child. Since 1991 he has had only two relatively minor convictions, one in 2001 for possession of cannabis and the other in 1993 on a charge of wilful damage.
The complainant had convictions for disorderly behaviour and possession of cannabis in 1999 and assault with intent to injure and attempting to pervert the course of justice in July 2000.
The appellant deposes that he told his trial counsel that he was of the opinion that the complainant was a prostitute and he says that counsel undertook to make inquiries into her background. He says that he was not told of the complainant’s convictions and that had he been told, he would have required his counsel to put those convictions to the complainant. He says that he would not have been concerned at his record being made available to the jury because of his lack of serious convictions over the last ten years. He said he would willingly have given his consent to trial counsel to cross-examine the complainant had he known of her convictions.
In his affidavit in response, trial counsel said that the question of putting character in issue was discussed and that both he and the appellant agreed that it would be highly undesirable for the appellant’s previous convictions to be put before the jury. In his affidavit in reply, the appellant acknowledges that there was such a discussion, but only in the context of his suspicions that the complainant was a prostitute and he reiterated that at no time did trial counsel bring the complainant’s criminal record to his attention. This was the issue in respect of which we provided the opportunity for trial counsel to file a further affidavit.
In Mr Balme’s further affidavit he said that he had no actual recollection of showing Mr O’Connor the complainant’s previous conviction list, but he believed that the appellant would have had a copy of that list by way of circulated disclosure from his office and he further believed that the list would have been discussed with Mr O’Connor as part of the discussion about character. He said:
Comparing the two conviction lists would have been fundamental to the discussion as to character.
At the outset of the resumed hearing on 4 February Mr Perrior told the Court that he now accepted that contrary to what had been said in the appellant’s earlier affidavit in reply, the appellant had been told of the complainant’s convictions by Mr Balme prior to trial. Mr Perrior thereafter conducted the resumed appeal on the basis that counsel’s error lay in his failure to inform the appellant of details of the complainant’s offending.
Mr Perrior took responsibility for the error in the appellant’s affidavit because he had information before him which he had overlooked at the time he had drafted the affidavit making it clear that the appellant did know of the criminal record of the complainant. Had we known that this was the case at the time of the initial hearing, it is most unlikely that we would have taken the step of adjourning the hearing and giving the Crown leave to file a further affidavit.
At the resumed hearing there was extensive cross-examination of both Mr O’Connor and Mr Balme. Mr O’Connor now maintained that he became aware of the complainant’s previous convictions on the Friday before the Monday on which his trial was to start. He said that he and Mr Balme discussed the convictions list on that day and Mr Balme said that they would discuss it further on Sunday, 30 September to consider whether to use it in cross-examination.
He then says that on Sunday, 30 September he had a meeting at which the conviction list was not discussed, that that meeting was terminated, he thought prematurely, by Mr Balme and that there was no further discussion of the complainant’s convictions and no decision made as to whether to put them to her in cross-examination. Mr O’Connor said that at the meeting on Friday Mr Balme told him that he was going to get the summary of facts concerning the complainant’s convictions and that the matter would be discussed further on the Sunday. He said the Sunday meeting ended with him suggesting to Mr Balme that he needed another lawyer. He said he understood that if the complainant’s character was put in issue, his convictions might be placed before the jury.
Mr Balme acknowledged that he received the list of previous convictions from the Crown under cover of a letter of 25 September. He said the conviction list was discussed with the appellant and a decision was made as to how to cross-examine the complainant. Although he had not seen the summary of facts at the time of trial he said that having now seen it, it did not change his view that the right tactical decision was made as to how to conduct the trial. He agreed that the offences were serious, but said they were not sufficiently serious to warrant the risk of putting Mr O’Connor’s previous convictions before the jury. He denied that the meeting on the Sunday was cut short or that it ended in the way the appellant said. He said there was one bad meeting at an earlier stage where he recalled effectively showing Mr O’Connor the door, but that the appellant contacted him the following day to apologise and matters were patched up. He said that his recollection of the final Sunday meeting was that it was focused, that he and the appellant worked through the material they needed to work through and left on good terms. He said that by the Sunday afternoon the prostitute issue had been put to one side, because there was no evidence to support it, and the focus was on the previous conviction lists.
Having considered the evidence we prefer that of Mr Balme as to the content and nature of the meetings prior to trial. We are satisfied that he did receive the conviction list on 25 September and that it was discussed at the meeting on Friday and again on Sunday, 30 September. In particular, we are satisfied that on the Sunday the appellant and Mr Balme discussed the extent to which the complainant’s character should be put in issue in the course of cross-examination. On an earlier occasion discussion had focused on the appellant’s concern that the complainant was a prostitute and he had been advised that there was no adequate basis to cross-examine her on that matter. It is clear that Mr Balme did not obtain a copy of the statement of facts relating to the complaint’s convictions. He said he may have obtained some information from the Crown prosecutor, but that is insufficient for us to find that he did in fact do so.
We are satisfied that in the end the appellant accepted counsel’s advice that he should not put at risk the possibility of his convictions becoming part of the evidence and should leave it to counsel’s discretion as to how far matters of character should be taken. We accept Mr Balme’s evidence that the meeting which ended in some acrimony took place on an earlier occasion and differences were resolved shortly thereafter. We also accept Mr Balme’s evidence that he regarded the situation facing his client as one requiring caution from him in the cross-examination of the complainant. Mr Balme was concerned that the facts preceding the sexual encounter were such as to reflect poorly on the appellant in the eyes of the jury. He was concerned at the effect that the appellant’s prior conviction for assault on a female, even though it was 10 years old, would have had, given these facts.
Counsel referred to the decision of this Court in R v Anderson [2000] 1 NZLR 667. That judgment discussed the circumstances in which it was appropriate for the Court to exercise its discretion to admit evidence of an accused’s previous convictions. The Court held that in making such a decision a Judge must consider carefully whether the evidence of those convictions was sufficiently cogent to overcome the recognised prejudicial tendency of such evidence and whether those convictions were sufficiently linked to the defence case.
Mr Perrior submitted that on the basis of those tests it was by no means certain that the convictions would be admitted. But that is not the issue, which is whether Mr Balme's apprehension was both unjustified and was within the category of "radical error" by counsel that may give rise to miscarriage of justice. We consider that on the facts of this case Mr Perrior under-estimates the risk. Despite the age of the conviction we consider that the view of counsel that those convictions would be admitted if he sought to cross-examine the complainant on her convictions was a reasonable one.
Mr Perrior also submitted that disclosure of the appellant’s convictions to the jury would not have the damaging effect that Mr Balme considered they would have. This is quintessentially in the area of tactical decisions for counsel. The circumstances were such as to provide justification for Mr Balme’s concern. The principle is that a mere mistake in tactics in the conduct of the defence does not provide a basis for a new trial. There must be a mistake in the conduct of a defence that is so radical that a miscarriage of justice might have resulted before it can be said that a new trial would be required. The leading case is the decision of this Court in R v Pointon [1985] 1 NZLR 109. The mistake must be of such a nature as to make the appellant’s trial unsatisfactory so as to entail miscarriage of justice.
The present case comes nowhere near that position. As indicated above, although the convictions concerned were 10 years old the circumstances of them did allow counsel reasonably to be concerned that a Trial Judge might draw the inference that they were relevant to the appellant’s ability to control himself on the night in question – Anderson paragraph 33. Furthermore, the Trial Judge might well have held that the prior convictions were evidence that was sufficiently substantial having regard to the purposes for which it would be given, to warrant its admission in the interests of justice – Anderson paragraph 39. An attack on the character of the complainant by cross-examining her as to her own previous violent behaviour and her dishonesty and contempt for the justice system, as reflected in her previous convictions, would be a sufficient imputation on her character to make it more likely that the Trial Judge would admit the evidence – Anderson paragraph 41. In these circumstances Mr Balme made judgments that were open to him as to the best defence tactics.
Whilst it seems more likely than not that trial counsel was unaware of the detail of the complainant’s prior offending, we have seen the statement of facts and there is nothing in it that would suggest that a different approach might have been followed had counsel known the details concerned. Different counsel might take different views as to the impact of the convictions, but we are satisfied that in the circumstances of this case counsel made a prudent judgment as to how the case would be conducted. The appellant was competently defended in accordance with his instructions.
This ground of appeal cannot succeed.
The cellphone call
The appellant wished to establish that the complainant was not distressed (as she stated in evidence) after he dropped her off outside Katikati. To this end he said that his counsel should have called the evidence of a motorist who passed her twice at this time. He also maintained that evidence should have been called, or inquiries should have been made, in relation to a 111 call made by the complainant on her cellphone. Evidence was given of the record of that call. The witness who took the call described it as being from a distressed female person telling her that she had been raped. She said the call was cut short when the cellphone appeared to run out of battery power. The complainant confirmed that she had made that call and that the battery on her cellphone had gone flat and had made beeping noises before doing so. Those beeping noises could not be heard on the police tape of the call.
The appellant’s complaint was that his trial counsel should have called expert evidence as to whether the beeps would have been heard by the person receiving the call. If they had not, that would, according to the appellant, have been an indication that the complainant faked her distress and deliberately disconnected the call.
The appellant has not filed an affidavit as to the characteristics of the cellphone, whether it gave an audible alarm when the battery was low, and whether, if it did so, that alarm could be heard by the receiver of the call. In the absence of such an affidavit we do not consider that the appellant has raised an issue of substance in support of his appeal.
The failure to call the witness who saw the complainant in Katikati
As already indicated, this issue is allied to the previous one. The police took a statement from a security officer who was on routine patrol in Katikati at 3.30 a.m. on the Sunday when these events took place. He says that he saw a female aged about 18, walking along the side of the road, heading north towards Waihi trying to hitch a ride. He said it was unusual to see a female hitch-hiking at that time of the morning, but that she appeared to be fine and did not motion for him to stop. He said he drove past her and then, about five minutes later, saw her again where a truck had stopped. He saw her get into the truck which drove off, heading north.
Trial counsel’s response to this was that he did speak to the witness and told the appellant of that. He said that he and the appellant agreed that there was no need to call the witness as he would not be able to advance the defence case. He said the witness had only a vague recollection of the incident and that the fact that she “appeared to be fine and did not motion me to stop” was in counsel’s view of minimal importance.

Again, the appellant has not obtained an affidavit from this witness. In those circumstances we accept trial counsel’s evidence. We consider that the decision made was well within the area of the discretion of counsel as to the conduct of the trial.
Failure to re-examine the appellant
When the appellant was first arrested he denied having sexual intercourse with the complainant. Indeed, he denied picking her up and said that on the night in question he was at home with his partner. He later spoke to his counsel and on counsel’s advice refused to make a statement and refused to give a blood sample for DNA purposes. A Suspect Compulsion Order was made. Once the results of that were available he admitted having intercourse with the complainant.
The appellant was cross-examined quite vigorously in relation to the initial lie that he told and the fact that he did not admit intercourse until faced with the results of the DNA test. It is the submission on behalf of the appellant that his counsel should have re-examined him to establish that his refusal to make a statement after the initial denial and his refusal to provide a DNA sample, was as a result of advice from his counsel.
Without objection from counsel for the appellant the Crown placed before the Court the outline of trial counsel’s final address to the jury. Our attention was also drawn to the appellant’s evidence-in-chief where he explained why he had lied when first questioned by the police.
The notes for the final address specifically drew the jury’s attention to the fact that the appellant’s actions were the result of counsel’s advice, that the appellant was entitled to the right to silence and that if the jury considered that the legal advice was not appropriate, counsel should be criticised, not the appellant. In our view the evidence-in-chief and the final address were entirely adequate to meet the point raised on behalf of the appellant. It should also be noted that the trial Judge summed up fully and fairly on this issue.
The Juror
The appellant says that part-way through the trial he recognised one of the jurors as being known to him. He recognised him as his predecessor at work and now working for a competitor. He complains that trial counsel ignored his concern and failed to raise the matter with the trial Judge. Trial counsel’s response is that it seemed to him that the juror’s association with the appellant was so marginal and peripheral that there was no need to raise the matter with the Judge. He said that the appellant did not make an issue of it at the time, other than to say that he knew the juror.
In his affidavit in reply, the appellant goes into further detail. He says that the relationship between the competitor company and his own was not good and that he told counsel that he wished the juror to be stood down.
We accept trial counsel’s evidence as to the view he formed of the significance of the complaint and consider that his decision to take no action was an appropriate one in the circumstances.

Conclusion

We are satisfied that the decisions made by counsel were properly made and were within the area of the discretion of counsel as to the conduct of the trial. We do not accept that there are grounds for finding that the jury’s verdicts were unsafe. Accordingly, the appeal is dismissed.

Solicitors
Crown Law Office, Wellington

[2003] NZCA 19

25 February 2003