The Queen v Walling
[2006] NZCA 39
•20 March 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA355/05
THE QUEEN
v
REGAN BLAIR WALLING
Hearing:9 March 2006
Court:Chambers, John Hansen and Baragwanath JJ
Counsel:P Mabey QC for Appellant
E M Thomas for Crown
Judgment:20 March 2006
Reasons:20 March 2006
JUDGMENT OF THE COURT
A The appeal is allowed.
B The conviction is quashed.
C A verdict of acquittal is entered.
____________________________________________________________________
REASONS
(Given by Baragwanath J)
[1] On 9 March 2006 we allowed the appellant’s appeal and directed that a verdict for acquittal be entered. The reasons now follow.
[2] The appellant was jointly charged on one count of kidnapping included in an 11 count indictment to which his co‑accused Martin and McArthur faced the principal allegations. The Crown case was that the appellant provided support and back‑up to Martin and McArthur as they took the complainant from an address at Mt Maunganui in a motorcar to another address. The Crown alleged that on the way the co‑accused had beaten the complainant whom they later tortured. The appellant was charged as a party to a kidnapping by the others. The Crown claimed that he described his role as simply to provide support and back‑up to them.
[3] This is an appeal against the conviction based on a miscarriage of justice said to arise from his trial counsel’s failure to follow instructions and general incompetence during the trial.
[4] It is common ground that at the depositions hearing the complainant was unable to identify the appellant as being party to the alleged kidnapping. The only evidence supporting the prosecution case was of an interview of him by a police officer, particulars of which were said to have been recorded in his notebook. The notebook has been mislaid since the trial and the only record is a job sheet which contained the following passages:
1810 hrs
Returned to Tauranga Police Station with Det. BROWN and WALLING.
There he was placed in an interview room at which stage Det. BROWN gave WALLING the Caution and Bill of Rights.
WALLING acknowledged that he understood his rights that were given to him.
We explained to WALLING the situation in relation to the kidnapping and spent some time trying to address concerns that he had in relation to naming co‑offenders.
2005 hrs
I informed WALLING that I now wished to ask him questions in relation to the incident for which I was going to record the answers. I then gave him his caution and rights again.
ISYou are not obliged to say anything but anything you do say may be given in evidence. You have the right to consult and instruct a lawyer without delay and do so in private. You have the right to refrain from making a statement. Do you understand that?
HS Yes. (NODDING).
WALLING then sought clarification with us in relation to concerns about identifying co‑accused. He was told that he did not have to name his co‑accused. This was a very amicable and open conversation. Shortly after this I then recorded in my notebook questions and answers as he declined to go on video.
ISOn Wednesday, 22 October, did you pick your missus up from the Airport?
HS Yeah.
IS Where did you go after picking her up?
HS Straight back to her place.
…
IS What time did you get home with her?
HS About 7 p.m.
IS How long were you home for?
HS Three quarters of an hour.
IS Did you go out again?
HS Yeah.
IS Where did you go?
HS Mt Maunganui.
IS Did you get picked up from home?
HS Yeah.
IS Who by?
HS I’d rather not say.
IS One or two associates?
HS Two.
IS What sort of car?
HS Honda.
IS Colour?
HS White.
IS Do you know the model?
HS No.
IS Where in the Mount did you go?
HS I didn’t know what address we were going to, they never told me.
IS On the way what was talked about?
HS Going to see a mate about some money
IS Did he owe them or they owe him?
HS I don’t know, a bit of both, I don’t know.
IS Why were you going along?
HS Just for a ride I didn’t realise at the time but it was for backup.
IS What did you do when you got to the address?
HSGot out of the car. They knocked on the door. I didn’t know whose house it was. I walked most of the way down the hallway and turned around and walked out.
IS Did your two mates go into a room?
HS No, they just stood at the doorway, they didn’t go in.
IS Did someone come out of the room?
HSI presume so, I walked out. I turned around and everyone walked out casually behind me.
IS Then what?
HS We went to the car, everyone got in.
IS Where did you sit?
HS Front passenger.
IS And the person you picked up from the address?
HS He was in the back behind the driver’s seat.
IS Did you hit this guy at all? Did you know his name?
HS No.
IS Did either of the other two hit him in the back?
HSI didn’t see, I only heard a ruckus in the back. I never turned around.
IS Then where did you go with him?
HS On the highway towards Te Maunga.
IS What was being said to this guy?
HS I can’t remember just something about owing money and a ruckus.
IS Where did you go from there?
HS To a house in Windermere Drive.
IS Whose house?
HS One of the two guys I was with.
IS Did you stop anywhere on the way?
HS No.
IS What happened when you got to the house in Windermere?
HSI hopped out of the car and through the gate, sat on the back doorstep.
IS What was the others doing?
HSThe driver was in the house and the other two were still in the back of the car.
IS What did you do?
HS Pushed the Ford Falcon away from the front of the garage door.
IS Then what?
HSWent inside and got a can of lemonade out of the fridge, drunk half of that, then went out the front door to walk out the back.
IS Were the other two still in the car?
HS Yeah.
IS Then what did you do?
HS I text my girlfriend to come and get me.
…
IS What time was that?
HS About 9 p.m.
IS Then what did you do?
HSWalked down the drive and waited for her to pick me up about 10 metres down the road.
ISWhere were the two of that were in the back seat when you left?
HSNo they had gone into the garage I think, because they weren’t in the house. I just came out of there.
…
ISWhy did you leave?
HSUncomfortable with the situation.
ISCan you elaborate on the situation as you saw it?
HSI thought about what was going on on the way back and I wanted out of there.
I then read the contents of my notebook entries to WALLING and asked if he wanted to sign the bottom of each page but he refused to sign.
[5] We have emphasised passages which the appellant denies were said.
[6] The appellant’s trial counsel Mr Chadwick made an affidavit following the appellant’s waiver of privilege and was cross-examined before us. He did not dispute that the appellant’s instructions to him were as follows:
(a)I was in the car with Mr Martin and Mr McArthur and went with them to the Mount Maunganui address.
(b)I did not know of any particular purpose for going to the address and did not tell Detective Sickler that there was a discussion concerning the recovery of money (as recorded in Detective Sickler’s notebook and jobsheet).
(c)At the Mount Maunganui address I met Mr Gover for the first time, it seemed that he was known to McArthur and Martin.
(d)Mr Gover willingly left the Mount Maunganui address in the car.
(e)I left Windermere because I wanted to go home to my girlfriend.
(f)That there were a number of things mentioned in Detective Sickler’s notebook (referred to below) that I did not say.
(g)That I refused to sign Detective Sickler’s notebook because it was wrong in places and he refused to change what he had written.
[7] Trial counsel further acknowledged that before trial the appellant gave him instructions concerning the detective’s notes, namely:
(a)I did not say to Detective Sickler that – ‘I didn’t realise at the time but it was for back-up’
(b)I did not say to Detective Sickler that the trip to Mount Maunganui was – ‘to see a mate about some money’.
(c)I did not say to Detective Sickler that I – ‘heard a ruckus in the back’
(d)I did not say that I left Windermere because I was ‘uncomfortable with the situation’ and ‘I thought about what was going on the way back and I wanted out of there’
(e)I told the Detective that I would sign his notebook if he altered it but he refused to do so.
(f)That I was with Detective Sickler on the 4th November 2003 from about 5.30pm until midnight. I pointed out that the Detective’s notebook, and subsequent jobsheet, did not record the time that his interview with me ended.
(g)I instructed [counsel] that during the approximately 6½ hour period that I was with the Detective he told me that he would write what he wanted in the notebook regardless of what I said and that when I refused to sign the notebook because it was wrong the Detective got angry, kept me in the room with him for a number of hours, threatening that I would be charged with all of the other charges involving Martin, McArthur and Kimber.
(h)When Detective Sickler finally accepted that I would not sign his notebook because it was wrong he eventually charged me at about midnight.
[8] In his affidavit trial counsel stated:
I was aware that Mr Walling wanted to give evidence and he was pumped up about that because other accused had decided to give evidence and it concerned me that he would not give a good impression to the jury. In the end Mr Walling said he would leave that decision to my discretion and I elected not to call him to give evidence.
[9] But in cross‑examination before us trial counsel’s concession went further:
I suggest to you that by the end of the Crown case and in the face of the unchallenged Sickler statement or evidence Walling told you that he wanted to be called he instructed you he wanted to be called you had express instructions that’s what I’m putting to you now did you receive express instructions that your client in this trial wanted to give evidence in his own defence before the jury ?.... He said to me I would like to give evidence if that's as express as you can make it I would like to give evidence that’s why I say he was consistent about that.
And he was saying this in a pumped up way near the end of the Crown case ?....Yes.
You made an assessment of your client that he wouldn’t shape up too well didn’t you ?....Yes.
But notwithstanding that assessment he continued with his desire to give evidence right ?.... Yes.
And told you that’s what he wanted to do do you accept that ?.... I accept that.
In that situation and given what he was telling you surely you must accept that you were receiving instructions from your client that he wanted to give evidence before the jury do you accept that ?....Yes I want to give evidence he said that’s what I'm saying.
And I’m saying to you those words are an instruction to you his counsel that he wants to be called do you accept that ?....Yes.
And in the face of those instructions based on your own assessment of how he might go when Her Honour asked you to elect you said no correct ?...That's right.
You were ignoring your client's instructions correct ?.... Yes I would agree with that.
[10] At the conclusion of this cross‑examination the Court enquired of Crown counsel whether the Crown could properly resist the appeal. Mr Thomas very properly acknowledged that it could not. We agreed with his conclusion.
[11] It is to trial counsel’s credit that when the appellant’s contentions were put succinctly to him by Mr Mabey QC he made no attempt at equivocation but was completely candid.
[12] He acknowledged first that the appellant denied the partial admissions attributed to him by the interviewing officer and asked counsel to challenge them. We accept the appellant’s account which counsel did not deny that the voir dire procedure of challenging a disputed statement pre-trial before a judge alone was to be followed. That would have afforded the appellant the opportunity to test the officer’s account that in the course of a six and a half hour interview the challenged admissions were made and accurately recorded in the absence not only of a video record but even the original notebook. There could be no justification for counsel’s failing to comply with his instruction to undertake a voir dire at which the appellant could have given evidence on the issue in the absence of a jury.
[13] Had such an application been successful there must almost inevitably have been a discharge, given the absence of support for conviction in the depositions. For no apparent reason trial counsel’s conduct deprived the appellant of the opportunity to have the case dismissed at that point.
[14] The risk of miscarriage was accentuated when at trial, trial counsel simply failed to put in cross‑examination of the police officer, the appellant’s instructions that he denied the alleged incriminating passages of the statement.
[15] Moreover, counsel flatly disregarded the appellant’s specific and emphatic instructions that he be called to give evidence on his own behalf.
[16] Undoubtedly there would have been risks for the appellant had that course been adopted before the jury. The Crown had led evidence from the appellant’s partner, which contained an admission to her that he had falsely asserted to the police that she had picked him up from the second address on the night of the events, contrary to the fact.
[17] But the law is quite clear that counsel has no authority to defy the instructions of his client. In R v McLoughlin and Isaacs (1984) 1 CRNZ 215 this Court considered a case where counsel considered that no evidence should be called for the defence (at 216):
…he elected to call no evidence. This course was not taken without consultation with his client. On the contrary, he sought his client’s approval. But it was refused outright. Thus in continuing with the case as he did, counsel acted contrary to his instructions and thereby deprived the applicant of the opportunity of presenting his intended defence.
The reason, it appears, was that counsel thought the proposed evidence unreliable and that it would be improper for him and detrimental to the applicant for it to be called. It is not for this Court to question counsel’s judgment about that, or to comment upon the evidence ourselves. But the plain unvarnished fact is that counsel most certainly had no right to disregard his instructions. Following any advice he thought it proper to give to his client, his duty was either to act on the instructions he then received or to withdraw from the case.
It does happen from time to time that a barrister will find himself unable or unwilling to act in accordance with his client’s wishes. They may, for example, be incompatible with his duty to the Court or with his professional obligations; or he may consider that compliance would be prejudicial to his client’s best interests. Should such a circumstance arise, then he must inform the client that unless the instructions are changed he will be unable to act further. If the difficulty arises during a trial he should immediately inform the Judge and seek leave to withdraw. It will then be the Judge’s responsibility to determine what should be done, whether in terms of arranging for an adjournment or otherwise. But certainly counsel may not take it upon himself to disregard his instructions and to then conduct the case as he himself thinks best.
It is basic in our law that an accused person receive a full and fair trial. That principle requires that the accused be afforded every proper opportunity to put his defence to the jury (cf s. 354 of the Crimes Act). The present applicant has been deprived of that opportunity and justice has therefore been denied to him.
That principle is of direct application in the present case.
[18] Ordinarily the consequence would be a new trial. But in this case the appellant has served his sentence of 18 months imprisonment with leave to apply for home detention.
[19] The Crown accepts that, placing its case at its highest, the appellant’s conduct was on the fringes of the conduct of his co‑accused and a new trial is unwarranted. We therefore pronounced an order of acquittal on the charge the appellant has faced.
Solicitors:
Crown Law Office, Wellington
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