W (SC 16/2018) v The Queen
[2018] NZSC 46
•14 May 2018
| NOTE: ORDER MADE BY THE COURT OF APPEAL PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPLICANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE |
| NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY SS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE |
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI |
| SC 16/2018 [2018] NZSC 46 |
| BETWEEN | W (SC 16/2018) |
| AND | THE QUEEN |
| Court: | Elias CJ, William Young and Ellen France JJ |
Counsel: | L A Andersen for Applicant |
Judgment: | 14 May 2018 |
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
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REASONS
Introduction
The applicant, Mr W, was convicted after trial of sexual offending in relation to his two step‑daughters. This was the second trial on these matters, the initial trial having been aborted.[1] Mr W’s appeal against conviction to the Court of Appeal was dismissed.[2] He now seeks leave to appeal to this Court.
The proposed appeal
[1]There had also been a previous abandonment.
[2]W (CA272/2017) v R [2018] NZCA 11 (Brown, Courtney and Toogood JJ).
Mr W wishes to argue on the proposed appeal that a miscarriage of justice has occurred because trial counsel did not follow instructions to cross‑examine the complainants as to inconsistencies in their evidence as to particulars of their complaints. It is also said that a question of general or public importance arises as to trial counsel’s obligations in relation to a client’s instructions.
The first aspect of the proposed appeal was considered by the Court of Appeal. In concluding the approach of trial counsel did not give rise to a miscarriage of justice, the Court made two main points.
First, the Court noted that trial counsel had told Mr W he would be running the trial differently from the way in which Mr W’s previous counsel had run the first, aborted, trial. In particular, counsel told Mr W he would not be cross‑examining the complainants with the same level of detail as had occurred at the first trial.[3] Mr W did not object to the way in which the trial was being conducted at the time.
[3]Mr W said he had not been told counsel had decided to take a different approach.
Second, having reviewed the transcripts of the complainants’ evidential video interviews and the cross‑examination of the complainants at the first trial, the Court said there was no error in trial counsel’s assessment of the approach to be taken to cross‑examination. Trial counsel, who was cross‑examined in the Court of Appeal on his affidavit evidence, had put the defence to the complainants. [4] In addition, “[s]ome specifics” were canvassed.[5] But the Court agreed with trial counsel’s assessment that further focus on details would not have advanced matters; indeed, given the complainants’ responses in cross‑examination in the first trial, this would have had a negative impact.
[4]Mr W denied the offending and maintained the complaints were fabricated.
[5]At [20].
In conclusion, the Court was “satisfied” the defence had been conducted “in accordance with Mr W’s broad instruction that the allegations were fabricated”.[6] In the circumstances, the approach adopted had not resulted in a miscarriage of justice.
[6]At [52].
The matters the applicant wishes to raise on this aspect of the case were accordingly all evaluated by the Court of Appeal. We see no appearance of a miscarriage of justice arising from that assessment.
In respect of the second proposed ground of appeal, the applicant relies on the decision of the Court of Appeal in Fahey v R.[7] In particular, the applicant points to the statement in Fahey that the defendant’s protected rights confer on a defendant “a power of decision over central rights” including “how to challenge the prosecution witnesses”.[8]
[7]Fahey v R [2017] NZCA 596, [2018] 2 NZLR 392.
[8]At [41](a).
It may be a question of general or public importance may arise as to how the approach taken in a case like the present one fits with that adopted in Fahey, which was addressing trial counsel’s obligations in the context of a consideration of court‑appointed counsel. But the Court’s observations in the present case were very much a response to the particular factual situation. In these circumstances, no question of general or public importance arises.
For these reasons, the application for leave to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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