The Queen v Michael Albert Momo

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 115/02

THE QUEEN

MICHAEL ALBERT MOMO

Hearing:	18 July 2002
Coram:	McGrath J Robertson J Gendall J
Appearances:	G D Trainor for the Appellant B J Horsley for the Crown
Judgment:	23 July 2002

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

The appellant was found guilty by a jury in the District Court at Timaru, on charges of assault and threatening to kill. He was sentenced to an effective term of six months imprisonment with leave granted to apply for home detention. He appealed against sentence and conviction. He has abandoned the sentence appeal, which is accordingly dismissed.
The grounds of appeal against conviction are a challenge to the conduct of trial counsel. The appellant says that as a result of the manner in which counsel conducted the trial a miscarriage of justice has occurred. It is said that counsel failed to call evidence, from two witnesses, or to take instructions from the appellant as to the calling of such evidence. It is said that those witnesses could and should have given evidence for the defence and, if so, such would have led at least to a reasonable doubt existing as to the appellant’s guilt.

Background

The appellant was charged with assaulting a 15 year old boy named Darcy Gosling. He is the son of the appellant’s sister Tracey Gosling. Darcy lived with the appellant but was visiting his older sister at another address. A visitor at that address was the primary Crown witness, Mr Mahi Taare Te Maiharoa. The Crown’s case hinged upon his evidence because Darcy and his sister Sandy Gosling (“Sandy”) were not called by the Crown to give evidence. Mr Te Maiharoa said that he observed the appellant come to the house looking for Darcy because of some mishap that had occurred at the home where they resided which caused the bath to overflow. He gave evidence of the teenager being grabbed, resisting and being grabbed by his hair, dragged outside and threatened. When the witness endeavoured to intervene he was rebuffed. He said that Darcy was able to extract himself from the car into which he had been thrown by the appellant and took refuge in the witness’ car, shaking and trembling and in a state of fright. The witness said that after endeavouring to intervene to protect Darcy the appellant approached him saying he would bring his associates down to kill him and that he was going to kill his parents also. It was a threat that Mr Te Maiharoa took seriously.
Evidence from a Police Constable was to the effect that the child did not give evidence at the depositions because he was upset. His evidence was that he put the allegation of assault to the accused who denied the assault but admitted going to the home because Darcy had left the bath running which had overflowed and flooded the house.
The appellant gave evidence, denying any assault on Darcy or threat to Mr Te Maiharoa. The appellant’s partner gave evidence to the effect that she did not observe the events, except the bathroom had been flooded, the appellant went to get Darcy and brought him back, but she did not thereafter here any threats made by the accused to Mr Te Maiharoa.
The jury obviously accepted the evidence of Mr Te Maiharoa because of convictions entered on both counts.
The complaint directed at trial counsel is twofold. First, that he failed to interview and call as a witness his sister (Tracey Gosling) who, he says, was present when the altercation with Mr Te Maihoroa took place and could say that the appellant did not threaten him. He says that after discussion with trial counsel it was his advice that she should only be called if Darcy gave evidence to the effect that he had been assaulted.
There was some discussion about calling a witness named Luke Bisset, who was interviewed by trial counsel, but on the advice of counsel the appellant agreed that he should not be called. He signed a note instructing Mr Scott that he did not wish to call Mr Bisset to give evidence:
as I am unsure what he might say,

and further he said in that note

I will give evidence myself – and I wish you to call Donna Fryer to give evidence as well.

Both the appellant and Ms Fryer gave evidence.

Secondly, complaint is made that trial counsel neither advised the appellant that Darcy and Sandy could have been called as defence witnesses. Nor, it is argued, did trial counsel interview or investigate the possibility of calling them as defence witnesses. Sandy had not come up to brief as a Crown witness at the preliminary hearing, despite what she had said in her earlier statement to the Police. Darcy had not wanted to give evidence, it is said by the Police because of fear of repercussions. The appellant says
If I had been advised in time that I could call Sandy and Darcy as witnesses I would have instructed Mr Scott to call them.
Obviously no note was signed in relation to the calling of Sandy. The appellant says that he had anticipated that her evidence would be helpful to him, on the basis of what she had said at the depositions hearing. The Crown, obviously unsure as to her reliability, given her prior inconsistent statements to the Police, were entitled not to call her. So too they were entitled not to call Darcy and there was evidence of a memorandum placed before the Judge, in relation to a mode of evidence application that the child was exceptionally fearful about giving evidence. The appellant says the Crown witness, Mr Te Maiharoa, who said that he observed the assault, did not tell the truth and the evidence of Darcy and Sandy may have been preferred, or at least raised as a reasonable doubt by the jury.
Trial counsel has filed an affidavit in which he denies that the appellant instructed him to call Tracey Gosling to give evidence. He says that when he interviewed the defence witness Ms Fryer, Tracey Gosling was present and she did not at any stage suggest that she was able to confirm that there had been threat. He deposed that he did not advise the appellant against calling Tracey Gosling to give evidence because there had never been any suggestion from her or the appellant or others that she was able to give relevant evidence.
Counsel deposes that he interviewed Mr Bisset but it was obvious to him that he could give no relevant evidence. In any event written instructions from the appellant confirmed agreement with counsel’s decision. He states that at an early stage, it was obvious to him that Sandy would not be called as a Crown witness because of her failure to come up to brief at depositions. He deposes that he discussed the matter with the appellant before trial, advising him that Sandy Gosling would not be called by the Crown but that he was not sure as to the position of the complainant Darcy. He said that he had information from the Crown, which suggested that Darcy may have been intimidated by others. Generally trial counsel’s affidavit is to the effect the appellant’s claims are untrue where he implies or alleges that Sandy and Darcy should have given evidence, and that he had not been made aware that they might be able to do so as defence witnesses.
The principles applicable where appeal grounds rest upon alleged failure by Crown counsel are well settled. In order to reach the threshold that a risk of miscarriage of justice exists an appellant must demonstrate “radical” or “fundamental” mistakes or blunders by trial counsel, not merely decisions that could have yielded a better result; R v Pointon [1985] 1 NZLR 109 (CA). The test is well known and it must be whether the conduct of the defence can be said to have led to a miscarriage of justice or at least to a real risk of miscarriage of justice: R v Jones (CA426/00, 30 March 2001).
There are situations where it may be established that trial counsel failed to follow his or her client’s instructions and in such circumstances an appellant must also show that such failure led to a miscarriage of justice: R v Reti (CA396/91, 22 November 1991); R v S [1998] 3 NZLR 392 (CA). Where there is alleged error through failure to call a witness, at the request of an accused, it must be clear that the instructions are not simply an expression of an appellant’s views on a particular matter but were intended to be directions to be observed and implemented by counsel so that they had to be followed irrespective of whether or not they might rebound to the client’s disadvantage. But this case is not one of trial counsel disregarding instructions of the client. It is not a situation where instructions were given. Not only were no instructions or expressions or wishes given to trial counsel by the appellant but nothing was said at all. What is now contended by way of complaint against trial counsel is that he should have advised the appellant of his entitlement, if he wished, to call those witnesses, and have interviewed those witnesses. The appellant says that if he had been so told of his entitlement then he would have given the necessary instructions. We think that is taking propositions established in R v Pointon (supra) too far.
As this trial developed the appellant knew that the alleged victim and his sister Sandy, was not to be called by the Crown to give evidence. The appellant and trial counsel knew what Sandy and Darcy had said in their depositions, as well as their statements to the Police. If he had so wished he could easily have instructed counsel to call them as witnesses. At that stage, no doubt advice would have been given to him by counsel (just as it was in the case of Mr Bisset) that to call those two witnesses may have been unwise. Counsel submitted that trial counsel should have advised the appellant, and did not do so, that an opportunity to investigate what Sandy and Darcy might say, and why they had not given evidence for the Crown, had arisen at the end of the Crown’s case and that some steps should have been taken to conduct such investigation. That would of course have required an adjournment being sought by Counsel. The realistic position is that trial counsel knew exactly what the complainant would say as he had his written deposition before him. Likewise he had the transcript of the deposition of Sandy as well as her statement to the Police. Those matters would not have been admissible, if led by him in evidence-in-chief, whether or not the witness’ evidence mirrored the deposition statements.
In essence this was a situation where the victim and another Crown witness declined to give evidence for the Crown. For counsel to call them as defence witnesses would require careful consideration, given the statements made to the Police. Had they given defence evidence inconsistent with what they had said in those statements they would have been the subject of vigorous cross-examination. With knowledge of those statements, the peril of calling those witnesses for the defence would have been obvious to trial counsel. It was elementary.
This is not a case of failure by counsel to follow client’s instructions, but simply involved a strategic and tactical decision made by counsel knowing the obvious risks that his client faced. Counsel confidently knew what the evidence might be, and he knew with certainty that, even if any evidence favourable to the defence had been given, perilous cross-examination would follow. The possible value to the defence of any evidence from those two witnesses can only be a matter for speculation, but it is highly probable that the damage would have been significant.
There is no basis for saying that any instructions given by the appellant were ignored by trial counsel. Challenge to counsel’s decision not to adduce evidence from essentially initial Crown witnesses cannot be sustained. It could not be said to have been a radical or fundamental mistake or blunder in terms of R v Pointon (supra). Indeed it is difficult to see that there was any mistake at all. The present claims counsel’s decisions were not only a mistake but also led to a miscarriage of justice are without merit. They were decisions taken in the course of conducting the defence and were, we think, wisely taken. Simply because the end result was adverse to the appellant does not provide support for his contention that a miscarriage of justice arose.
For the above reasons the appeal against conviction is dismissed.

Solicitors:
Trainor MacLean, Christchurch, for Appellant
Crown Law Office, Wellington

[2002] NZCA 174

23 July 2002