The Queen v Vinay Prakesh

IN THE COURT OF APPEAL OF NEW ZEALAND

CA554/99

THE QUEEN

VINAY PRAKESH

Hearing:	31 August 2000
Coram:	Blanchard J McGrath J Young J
Appearances:	P J Kaye for the Appellant K B F Hastie for the Crown
Judgment:	7 September 2000

JUDGMENT OF THE COURT DELIVERED BY MCGRATH J

Introduction

Following a trial by jury in the High Court at Auckland the appellant, Mr Prakesh, was convicted on sixteen counts of violence towards the complainant, his wife, during the ten month period of their marriage. Earlier he had pleaded guilty to five further counts of assaulting the complainant during the same period. Three of the convictions by the jury’s verdict were on counts of raping the complainant. The appellant was sentenced to an effective term of eleven years imprisonment. He appeals against the convictions at his trial on the ground that his counsel did not conduct the trial in accordance with instructions or competently. He also appeals against sentence.
The appellant and the complainant are Fijian Indians who entered into an arranged marriage at Auckland on 23 February 1998. Their marriage at the Otahuhu District Court was followed by a Hindu ceremony on 28 February 1998. The appellant was then aged 29 years and had been in New Zealand for five years. The complainant was aged 18 years. At the time of her marriage she had recently arrived in New Zealand to study.
The complainant and the appellant lived together as husband and wife until 26 January 1999. There had been an incident that day to which the police were called. In April 1999 a complaint was made to the police which ultimately led to the appellant facing a trial on twenty charges of violent offending against the complainant in the course of their marriage.

The trial and sentence

In accordance with Hindu custom, from the day after their Hindu wedding, the complainant spent a week at the home of her uncle and his family at the end of which the appellant, on 7 March 1998 called to take her back to commence their married life together at the place where he resided with his mother. Late on the evening of 7 March, according to her evidence, the appellant told the complainant he was taking her to a motel. Instead, she said, he drove her to two parks at the second of which, after they had left the car, he forcibly removed her clothing, performed oral sex on her, forced her to do the same to him and then raped her. He also threatened to kill her if she told her family. This evidence was the basis for two charges of unlawful sexual connection, one of rape and one of threatening to kill. The complainant also gave evidence of a further incident after they returned to the house in the early hours of 8 March.
The appellant’s evidence on these charges was that he and the complainant did not leave the house that night. He said they went to bed and to sleep without having sexual intercourse. Nor, he said, did they have sexual intercourse for the first time until three nights later. In brief his evidence was a flat denial there had been any violence or indeed sexual activity on the night of 7-8 March 1998. However the jury convicted him of all charges concerning events at the park that evening. He was acquitted of separate charges of rape and assault arising from allegations about what allegedly happened after the appellant and complainant returned to his mother’s home.
The complainant also gave evidence supporting various charges of assault and threatening to kill arising out of four other incidents during the following ten months of the marriage. An incident on 28 March 1998 was the subject of a charge of threatening to kill the complainant, and of a charge of assault that evening, involving punching her arms and hitting her with the flat of a knife. The appellant was also charged with punching the complainant’s face and punching her arms. This related to incidents taking place, first between June and September 1998 and, secondly, in December that year. The tenor of the complainant’s evidence supporting these charges was that the marriage during this time was marked by a climate of violence. In response the appellant admitted he had assaulted the complainant in the course of arguments with her. He said he had slapped her on her upper arm or face and hit her on her back. He disputed her evidence that he had kicked her, or stood on her leg or back, pulled her hair or threatened to kill her. The jury convicted the appellant on four charges of assault and one of threatening to kill the complainant, indicating that it accepted the complainant’s evidence and rejected that of the appellant.
The complainant gave evidence of being dragged out of her bed on 1 January 1999, being put on the floor and forcibly required to have sex with the appellant who departed after he had finished leaving her at home crying. In his evidence the appellant said that if he had sex with her it was not forced sex. In relation to this episode he was convicted of rape by the jury. A further series of incidents over a period between 20 and 26 January 1999 resulted in convictions for rape, threatening to kill the complainant and assaulting her by variously kicking her, standing on her leg or back, punching parts of her body and pushing her onto a bed. In relation to these the appellant’s evidence was that he agreed he hit her with his fist closed but did so with the bottom flat part of his hand. He could not recall having sexual intercourse but reiterated his denials that he had ever forced himself on the complainant.
Overall the appellant was convicted following his trial of sixteen offences he had denied. He was acquitted on four charges. He was also convicted of five further charges of assaulting her over the period of the marriage to which he had earlier pleaded guilty prior to his trial.
He was sentenced to eleven years imprisonment on each of the three rape charges on which he was convicted, six years imprisonment on the two sexual violation charges and between nine and eighteen months imprisonment on each of the three charges for threatening to kill, two charges of assault with intent to injure, one charge of assault and ten charges of assault by a male on a female. All sentences were concurrent giving an effective term of eleven years imprisonment. The trial judge said at sentencing that an additional three years should be added to the standard starting point for a rape conviction of eight years imprisonment. This was because of the totality of the offending covered by the convictions, its duration and the overall context of violence and seriousness of the appellant’s offending.

Appeal against conviction

The appellant appeals against conviction and sentence. As to the convictions the general ground is that the failure on the part of his counsel to act on the appellant’s instructions in conducting the trial and to conduct the defence in a competent manner has resulted in a miscarriage of justice. Affidavits were sworn by the appellant which set out five matters concerning his representation. There have been affidavits filed in response by the two counsel who appeared for him at the trial. Both the appellant and his principal counsel at the trial were cross-examined at the hearing of this appeal.
The appellant first took issue with his counsel’s advice that he enter guilty pleas to five of the charges of assault he faced. Secondly, he failed to call defence witnesses as instructed to do. Thirdly, he failed to heed instructions to follow up two professional witnesses, a psychiatrist and a private investigator with a view to calling them as witnesses. Fourthly, counsel did not challenge the continuing service of a juror who knew the appellant’s niece and other members of the family. Fifthly, counsel called the appellant to give evidence at the trial which was he said contrary to instructions. These failures individually or in combination were said to have caused a miscarriage of justice.
The affidavit of the appellant’s trial counsel annexes a document expressed to be “confirmation of advice given and instructions provided in respect of the conduct of” the appellant’s trial. It is comprehensive as to decisions taken concerning how the trial was to be conducted and outlines reasons behind the advice given the appellant and instructions to counsel based on the advice. The document was signed by the appellant on the morning his trial commenced. In an affidavit in reply to those of his counsel the appellant said that he did not read the document properly or give its contents due consideration before signing it. He signed it in something of a rush because his counsel asked him to do so and he trusted his counsel. This evidence was reiterated in cross-examination.
On the second day of his trial the appellant also signed another document headed “Statement of Vinay Prakesh”. It was common ground that this had been prepared by his counsel following a briefing from the appellant which occupied several hours. There was a disagreement as to when the appellant was given the document which was clearly prepared as a brief of evidence he would give if called at the trial.
Both the appellant and his counsel were cross-examined as to the circumstances in which the appellant signed both the confirmation of advice and his statement. It may be true, as the appellant said, that the appellant did not study the former document in detail before signing it. However we are satisfied he had the opportunity to do so and implicitly indicated his agreement with its contents when he told his counsel he had nothing to add to it. He then signed it. We are satisfied that the written confirmation of advice accurately records the basis on which the appellant had agreed with his counsel his trial should be conducted. We are also satisfied he had his own copy of the statement prior to commencement of the trial and that he was familiar with its contents when he signed the statement.
Overall in relation to the circumstances in which he signed the two documents we found Mr Prakesh a less than persuasive witness. Wherever there was a conflict between him and his two trial counsel we prefer the evidence of those counsel. The written material indicates his principal counsel had thought through the strategy of the trial and had given sound advice to the appellant throughout his engagement. He had been actively involved with the matter over several months and had developed a full understanding of his client’s position in the course of a successful appeal against the refusal of bail while awaiting the trial. Against that background we turn to address his particular grounds of appeal.
The appellant is of the view he was disadvantaged at his trial by his plea of guilty to five assault charges. He maintained in this Court he had agreed to so plead only on the understanding that the more serious charges against him would be dropped by the police. We are satisfied, however, that by the time his trial commenced the appellant was aware that his counsel’s attempt to have the more serious charges dropped had been unsuccessful. He entered the guilty pleas because he recognised that he had committed the assaults concerned and that to dispute the charges in the face of very strong independent supporting evidence would harm his credibility with the jury in denying the more serious charges. We do not accept the appellant’s evidence before us in which he sought to diminish the nature and degree of his violence in relation to the events the subject of these assault charges. Overall his guilty pleas were voluntary and he was fully informed and aware of the implications when he entered them. We see no merit in this head of the appeal.
The appellant secondly complains of the failure of his counsel, in accordance with the appellant’s instructions, to call to give evidence for the defence a medical practitioner and the landlord of a flat rented by the appellant and his wife. We are satisfied that counsel for the appellant looked into the possibility of calling both witnesses. We accept that he spoke to the medical practitioner who could not say anything of significance. In relation to the other witness he concluded she did not have anything relevant to say. We also accept that his counsel informed the appellant who accepted that there was no point in calling them. This is confirmed by the absence of their names from the list of witnesses counsel was instructed to call. There was accordingly no breach of instructions, but even if there had been there was nothing in the evidence either person is said to have been able to give which suggests that failure to call them could have led to a miscarriage of justice and a basis for allowing the appeal.
Thirdly we are also satisfied that the appellant’s complaint that, contrary to instructions and without explanation to him, his counsel failed to call two expert witnesses is without merit. The experts concerned, a psychiatrist and a private investigator, had been engaged by the appellant to assist his counsel in connection with an earlier appeal to the High Court against refusal of bail by the District Court. We are of the view the appellant has confused arrangements made with these experts for the bail appeal, with his belief that they were to be called to give evidence at the trial. We have considered the evidence the witnesses concerned gave to support the bail appeal which was put before us during cross-examination of the appellant’s counsel. Nothing that either said would have been admissible at the appellant’s trial. There were no instructions to call them nor was the appellant’s counsel remiss in failing to follow them up as potential witnesses. This ground also fails.
Fourthly there was a complaint that a member of the jury knew a niece of the appellant having studied with her at college. The niece recognised the juror who also knew the appellant’s family and the complainant. However the matter came to the attention of the judge who addressed it directly with the juror during the trial. The juror told the judge she felt able to continue. Neither the accused (who was aware of the matter before the judge raised it), nor his counsel, objected at the time. There is nothing to suggest there was any irregularity or prejudice to the appellant, let alone that a miscarriage of justice has occurred.
The fifth and principal ground of appeal was that the appellant was not adequately prepared to give evidence at his trial and that he was called when he had given instructions he did not wish to give evidence. The appellant maintained he did not receive copies of the deposition statements of prosecution witnesses and that he had instructed his counsel he did not wish to give evidence. He says it was only shortly before he was called that he was aware he was to give evidence. He says the consequence was that he was unable to impress the jury that his evidence was truthful with the result that he was convicted.
It is plain that the appellant was fully briefed as to what he was able to say in answer to the evidence given by Crown witnesses. We are also satisfied that he had received briefs of evidence to be given by prosecution witnesses, and in particular the complainant, at the time he was conferring with his counsel during the weeks prior to his trial. He made notes on some of the briefs and we do not accept his suggestion that this occurred after the trial. Given that his defence to the charges of rape was, in effect, that the complainant had made them up, the advice of his counsel was that he should give evidence at his trial. He had not made a statement to the police and there was no other way the appellant’s view of events, which directly contradicted that of the complainant, could be put before the jury with any prospect that it would be accepted. His counsel’s advice to this effect is supported by the signed instructions of the appellant.
We accept that the appellant was nervous about giving evidence and made aware his concerns about doing so to both his counsel as the trial progressed. Junior counsel at the trial filed a supporting affidavit which was not challenged by cross-examination. She said she reassured the appellant about his concerns in the course of going over his brief. We are of the view that he was adequately prepared and at all times aware of and accepting the need for him to give evidence to support his firm denial of the charges. We do not accept that at any stage he instructed counsel he did not wish to give evidence or that he only became aware at a late stage he was to be called. Nor do we accept that there was anything unfair or disadvantageous to him in the circumstances in which he eventually gave his evidence. There is a correlation between the oral evidence he gave and the written brief of evidence he signed. He came up to brief but his evidence was not believed. We find there is no basis for the challenge in this or any other respect to the way either of his counsel acted in the conduct of his defence.
For these reasons the appeal against conviction should be dismissed.

Appeal against sentence

Turning to the appeal against sentence, as indicated above the judge took the view that the totality of the offending, covered by the sixteen convictions, its duration and the overall context of violence and seriousness of offending called for an additional three years imprisonment to be added to the starting point of eight years. Accordingly he sentenced the appellant to eleven years.
Mr Kaye for the appellant submitted that the addition of the extra three years made the sentence manifestly excessive. He correctly accepted that the fact that the rape occurred in the context of a marriage relationship did not provide any basis for imposing a lesser sentence. Nor was he able to point to any factors that might point to reducing the sentence from the starting point.
This was an unusual case. On the finding of the jury the appellant raped his wife on the first evening of their cohabitation following their arranged marriage. Thereafter there were continual incidents of criminal violence including two further rapes over the ten month period their relationship subsisted. It is apparent from her evidence that the complainant felt unable to discuss the extreme elements of the appellant’s behaviour towards her with those of her family who were living in Auckland or with others who might have helped her address the violence to which she was subjected in her relationship or otherwise deal with her situation. It is clear that the appellant took advantage of the circumstances of the complainant after she came to be married to him. These were such that the appellant was in a position of trust in relation to the complainant’s welfare which he abused throughout the time they were married. In our view the judge’s conclusion that there were aggravating factors was warranted and the imposition of a term of eleven years imprisonment, although severe, was justified. We see no reason for interfering with it.

Result

For these reasons the appeal against both conviction and sentence is dismissed.

Solicitors

Crown Law Office, Wellington

[2000] NZCA 196

7 September 2000