Williamson v The Queen
[2020] NZHC 1791
•23 July 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-214
[2020] NZHC 1791
BETWEEN MARK ROBERT WILLIAMSON
Appellant
AND
THE QUEEN
Respondent
Hearing: 23 June 2020 Appearances:
Appellant in person
Z R Johnston for Respondent N C Chisnall standby counsel
Judgment:
23 July 2020
JUDGMENT OF ELLIS J
[1] In April 2015, following a trial before Judge Down in the District Court, Mr Williamson was convicted of sexual offending against SD, a boy who was aged between 12 and 13 at the relevant time.1 At trial, Mr Williamson gave evidence denying any and all sexual contact or conduct with SD.
[2] Mr Williamson was sentenced to nine years’ imprisonment and ordered to pay reparations of $20,000.2
[3] Now, four years later, Mr Williamson seeks to appeal against his conviction and sentence. He asserts a miscarriage of justice has occurred because he now admits
1 R v Williamson [2015] NZDC 10648. I note that there is another version of the judgment: [2015] NZDC 6995. Strangely, that is headed “Notes of Judge J C Down on Sentencing”, despite it being an amended version of the Judge’s original verdicts decision. The amendments are only to form. To avoid confusion, this judgment’s quotes and pinpoints refer only to the original version of Judge Down’s verdicts decision.
2 R v Williamson [2015] NZDC 13746.
WILLIAMSON v R [2020] NZHC 1791 [23 July 2020]
sexual contact with SD but says it was consensual. He contends his trial counsel failed to explain that the charges were “based entirely upon the issue of consent”, and that the availability of a “defence” based on consent has only become evident to him in the context of his recent parole hearings.3
Procedural issues
First appeal court and standby counsel
[4] Mr Williamson’s appeal was originally filed in the Court of Appeal. Because Mr Williamson was self-represented, and because of the nature of the appeal (which, among other things, would involve cross-examination of Mr Williamson and his trial counsel), the Court appointed Mr Chisnall as standby counsel. The appeal was set down for hearing on 24 June 2020.
[5] On 29 May, however, Ms Johnston for the Crown filed a memorandum identifying a problem. The short point is that because Mr Williamson’s trial was before a judge alone, his appeal should have been filed in this Court.4 On 10 June, Gilbert J in the Court of Appeal dismissed the appeal for want of jurisdiction.
[6] The appeal was then re-filed in the Auckland High Court and arrangements were made for a hearing to take place before me on 24 June. At the start of the hearing I confirmed Mr Chisnall’s appointment as standby counsel in this Court. I am grateful to him for his assistance.
Suppression
[7] SD’s name and identifying details are automatically suppressed, given the nature of the offending and his age. The names of two other boys/young men (Z and
D) who were homestay students living with Mr Williamson for parts of the relevant time are also suppressed.
3 I use the word “defence” here advisedly. Consent is, of course, not a defence to a charge of sexual violation. Rather the absence of consent (and the absence of reasonable belief in consent) is an element of the charge that the Crown must prove in order to obtain a conviction.
4 Criminal Procedure Act 2011, s 230(1)(b) and s 247(1)(b).
Extension of time
[8] As noted, the appeal was filed four years out of time. Mr Williamson therefore requires the Court’s leave to bring it. The application for leave is opposed by the Crown, although no issue is taken issue with the time elapsed since the original notice of appeal was filed in the Court of Appeal in August 2019.
[9] Whether an extension of time should be granted often depends on the proposed appeal’s merits. Mr Chisnall went so far as to say that the merits are, in effect, dispositive of the question of leave. I will therefore deal with the question of leave after I have addressed the substantive issues.
Factual background
[10] SD and Mr Williamson first met when SD and two other boys stopped to talk to Mr Williamson as he worked on his boat in his garage. SD then returned to Mr Williamson’s home on numerous occasions and spent time there with the homestay student, Z. SD’s return visits became more frequent, and SD and Mr Williamson became friendly.
[11] Mr Williamson has always acknowledged that he had consensual sexual contact with Z while Z was staying with him. Z was 19 years old. It was, in fact, Z who initially made the complaint to Child, Youth and Family (as Oranga Tamariki was then known) about the sexual contact between Mr Williamson and SD.
[12] As a result of Z’s complaint, the police were alerted. An investigation followed, in the course of which SD underwent an evidential video interview (EVI). In the result, the following 10 charges under the Crimes Act 1961 were laid against Mr Williamson:5
(a)Charge 1: meeting young person following sexual grooming, s 131B(1);
5 The dates between which the offending is said to have occurred are between 1 September 2012 and 30 April 2013 (charges one, two and four) and between 1 September 2012 and 30 December 2013 (remaining charges).
(b)Charge 2: doing an indecent act on a young person (touching SD’s arms and legs), s 134(3);
(c)Charge 3: doing an indecent act on a young person (kissing SD on the lips), s 134(3);
(d)Charge 4: unlawful sexual connection (introduction of penis into SD’s anus—first incident), s 128(1)(b);
(e)Charge 5: unlawful sexual connection (introduction of penis into SD’s anus—incident when condom split), s 128(1)(b);
(f)Charge 6: unlawful sexual connection (introduction of penis into SD’s anus—final incident), s 128(1)(b);
(g)Charge 7: unlawful sexual connection (introduction of penis into SD’s anus—representative charge), s 128(1)(b);
(h)Charge 8: unlawful sexual connection (connection between defendant’s mouth/tongue and SD’s penis incident when it hurt due to defendant’s moustache), s 128(1)(b);
(i)Charge 9: unlawful sexual connection (connection between defendant’s mouth/tongue and SD’s penis—representative charge), s 128(1)(b); and
(j)Charge 10: unlawful sexual connection (connection between SD’s mouth/tongue and defendant’s penis), s 128(1)(b).
[13] It can usefully be observed at the outset that the absence of consent, and of reasonable belief in consent, are elements of charges 4–10 but not of charges 2 and 3.6
6 The maximum penalties for those two classes of charges are 20 years’ imprisonment and seven years’ imprisonment, respectively.
The District Court trial and verdicts
[14] As noted earlier, Mr Williamson’s defence at trial was that none of the alleged incidents occurred, and he gave evidence at trial to that effect. SD’s EVI was played as his evidence in chief, and he was then cross-examined.
[15] Although the Crown had called both forensic and factual evidence intended to corroborate SD’s account (including evidence from Z), the Judge ultimately found that evidence to be (variously) unreliable, irrelevant, or unhelpful. In his verdicts decision the Judge observed that it was therefore a “he said/he said” case that turned on the respective credibility of SD and of Mr Williamson. For reasons that are not necessary to detail here, but which the Judge carefully set out, the Judge largely believed SD’s account and, so, that the relevant acts occurred.7
[16] Mr Williamson was discharged on the grooming charge (charge 1) at the close of the Crown case because (as the Judge said in his verdicts decision) “there was no evidence that the defendant had sought out the victim”.8 For charges 2 and 3, the Judge then found that the indecent acts had occurred and that Mr Williamson would have recognised them to be indecent:
[63] … the allegations in charges 2 and 3, alleging sexual conduct with a young person were, in my view, a form of sexual grooming as a precursor to the sexual violations. I need only be sure on those two charges that he did the alleged indecent acts; kissing on count 3 on at least one occasion and stroking arms and legs while exposing himself, count 2, and that the defendant recognised that right-thinking people would consider that indecent.
[64] Both elements in my view have been proved beyond reasonable doubt on both charges. …
[17] Although the absence of consent (and reasonable belief in consent) were not elements of charges 2 and 3, they were elements of the remaining charges that the Crown had to prove. And despite the nature of Mr Williamson’s “total denial” defence, the Judge expressly considered the question of consent in relation to those charges.
7 Mr Williamson necessarily now accepts that SD was truthful in his evidence, at least insofar as his account of the proven sexual acts is concerned.
8 Williamson, above n 1, at [63].
[18] More generally, he said the evidence showed that SD had not truly consented to much of the sexual contact with Mr Williamson:
[52] Now what about the topic of consent? Having concluded that the alleged acts occurred, in relation to counts 4 to 10, charged as sexual violation, I must also consider the question of consent. I remind myself that that must be true consent, not consent obtained by coercion, deception or force. It is clearly true that [SD] began to enjoy, at times, sex with the defendant. He said for instance in his evidential video interview, at page 41, “Sometimes I told him to do it with me as well.” At page 70, “I didn’t like it, but I didn’t mind it either.” At page 76, “My heart said no, but my brain said do it”" and at page 90, “That was when I felt really horny.”
[53] Counsel, Mr Wicks, submitted that never in evidence was [SD] unequivocal about not consenting. On the other hand, the Crown ask me to consider his age, the obvious confusion of the victim as to what was happening and one example of that was when he asked the defendant the question, “Will I get pregnant?”
[54] The Crown asks me to conclude that he did not consent without pressure on a number of occasions. He told the defendant he did not want to but the defendant said on various occasions that he was desperate or horny and cannot help himself. It is notable that [SD] said he never put his penis up the defendant’s bottom, and he only tried licking the defendant’s penis once briefly, after persuasion but did not like it. This probably is reflective of the dynamics of the relationship and is, in my view, supportive in a fairly general sense of the proposition that much of this activity was not truly consented to.
[55] He was also, [SD] said, worried that if he stopped, that the defendant might come to his home and then his parents would know. I have come to the conclusion that, in many instances, [SD] did not give true consent, it was coerced from him.
[56] I have therefore concluded that the victim did not truly consent on many occasions, that the defendant forced his will upon [SD] albeit by coercion and strong persuasion and pleading by a man in his 40s to a 12 or 13 year old boy, rather than by overt physical force. …
[19] And, specifically, the Judge considered the issue of absence of consent (or reasonable belief in consent) for the relevant individual charges:
(a)On charge 4, the Judge was satisfied “that [the act] was by force and without consent” and further that “the defendant did not on reasonable grounds believe that [SD] consented”.9
9 At [56].
(b)On charge 5 (the condom splitting incident), the Judge was not satisfied beyond reasonable doubt that SD did not consent.10 Mr Williamson was acquitted on this charge.
(c)On charge 6, although SD had said “okay”, the Judge said that he did not truly consent. And the Judge said SD’s complaints at the time meant that Mr Williamson did not honestly believe he was consenting.11
(d)On charge 7 (a representative charge), the Judge said:12
Considering the victim’s evidence in the round, I am satisfied that although there were occasions, particularly late on, when the victim did consent to anal intercourse, there are some when he did not. His evidence that this happened over 50 times is accepted by the Court as a rough estimate, perhaps more properly characterised as frequent and repetitive offending.
(e)On charge 8 (the moustache charge), SD did not truly consent and that the defendant in the circumstances could not have believed that he did.13
(f)On charge 9 (a representative charge), “on at least one further occasion, probably more” SD did not consent to oral sex and nor did Mr Williamson honestly believe that he consented. The Judge said:14
I accept, however, that there were some occasions and I rely upon the words of the complainant himself, “When I felt horny,” when he did in fact consent.
(g)On charge 10, the Judge said “it cannot be argued in my view that it was completely against [SD’s] will”, and so he was not satisfied that SD did not consent.15 Mr Williamson was acquitted on this charge.
10 At [58]. In this paragraph the Judge mistakenly refers to this as charge 7.
11 At [57].
12 At [59]. Although the Judge does not specifically refer to charge 7 here, that is plainly the charge to which he is referring.
13 At [60].
14 At [61].
15 At [62].
[20] Mr Williamson was acquitted on the charges 5 and 10 on the basis that the Crown had not disproved the absence of consent, accordingly.16
[21] Later, at sentencing, the Judge came back to the issue of consent. He said Mr Williamson had subtly coerced SD’s consent but not so far as to qualify, in the strict legal sense, as grooming:17
[14] The question of consent has been a significant one in this rather peculiar case. It cannot be ignored by the Court in this sentencing process that [SD] did certainly latterly at times consent to the activity and came to at times enjoy it. But the function of the criminal law in respect of young people and the need for the law to protect young people recognises that it is not only necessary to protect them from the abuse and advances of older people in circumstances where they simply do not know or have a full comprehension of what is right and what is wrong, but also the law protects them from themselves. The damage to which I have just referred, which will happen and does happen to many young people as a result of early sexual interactions with older people, is something which they cannot anticipate and the law recognises that and protects them from themselves.
…
[17] Although I have found that there were a number of circumstances of consent in this case, the reality is that that consent was obtained, in my view, by a process of subtle development and persuasion. It might, I suppose, be referred to as grooming but in the strict legal sense it was not grooming. But it does leave me with the conclusion that the consent to some of this behaviour by [SD] was consent resulting out of the prior conduct and persuasion of the defendant.
[18] [SD]’s involvement in this conduct would not have happened had it not been for the actions and persuasion of the defendant. His interest in same sex activity seems to come out of the actions and persuasion of the defendant. So the difficulty for me to deal with this case on the basis that there was some consent is that that consent clearly arises out of the conduct of the defendant rather than coming independently from the complainant and reference to his young age at, largely during this period, 12 years of age reinforces that conclusion.
Mr Williamson’s appeals
Conviction appeal
[22] Mr Williamson contends that he was convicted based on “false manufactured evidence”. In contrast to his evidence at trial, Mr Williamson now accepts there was
16 At [64].
17 Williamson, above n 2. Groomed consent is still consent.
consensual sexual contact between him and SD. He says the contact was initiated by SD and was, in all instances, consensual. He says it began within the first hour of SD coming to his house by himself and that it was always SD who requested sex.
[23] In his affidavits filed in support of his appeal, Mr Williamson criticised his trial counsel for having a “flawed defence strategy” and for failing to properly advise him. In short, he says he did not understand the relevance of consent. Accordingly, this ground of appeal essentially raises the issue of trial counsel error.
[24] But Mr Chisnall raised a second potential ground of appeal. Relying on the Supreme Court’s recent decision in Sena v Police, he suggested that the trial Judge did not separately or properly consider the issue of reasonable belief in consent.18 Mr Chisnall submitted that the Judge therefore erred in his assessment of the evidence to such an extent as to cause a miscarriage of justice.
[25] Mr Chisnall invited the Court to substitute convictions under s 134(1) Crimes Act 1961 (sexual connection with a young person, where consent is not a defence).
[26]Both grounds will be considered in the course of this judgment.
Sentence appeal
[27] The sentence appeal is contingent on the success of the conviction appeal. Mr Williamson submits that—given his position on consent—he could only have been convicted on charges of sexual connection with a young person, which carries a maximum penalty half that of sexual violation. He suggested that, as a matter of logic, the appropriate starting point would be six years’ imprisonment rather than 12. With a three-year reduction for mitigating factors, the appropriate end sentence would be three years’ imprisonment.
Trial counsel error
[28] When giving evidence at the hearing of the appeal, Mr Williamson was adamant that he did not understand that the more serious charges he faced related to
18 Sena v Police [2019] NZSC 55, 1 NZLR 575.
non-consensual sexual activity. He says he gave evidence at trial denying sexual activity “due to my lawyer never advising me that I should have defended the charges on the basis of consent”. He accepted that his evidence at trial had been untrue.19 More specifically, he said:
(a)Mr Wicks told him not to admit to the sexual activity because Mr Wicks would then be obliged to tell the Court;
(b)Mr Wicks never explained to him the charges’ different legal elements;
(c)he had been dissatisfied with Mr Wicks performance throughout and had attempted to dispense with his services;
(d)denying entirely the sexual activity seemed to him the only possible defence; and
(e)it was not until three years’ later (after seeing material relating to his conviction before a parole hearing) that he realised he could have run a defence of consent to the more serious charges.
[29] Mr Wicks QC also gave evidence at the hearing. Due to the effluxion of time, his recall of events was limited. He was, however, able to produce a number of contemporaneous documentary records (file notes and emails) that assisted his memory. I record that I am unable to accept any suggestion by Mr Williamson that these documents (which were put to him in cross-examination) had been somehow manufactured after the event or did not accurately record the relevant discussions.
[30] It is useful, I think, to set out a chronological account of Mr Wicks’ engagement with Mr Williamson based—where possible—on the documentary record.
[31] Mr Williamson was charged on 26 February 2014. Mr Wicks then first met with Mr Williamson on 11 March. Mr Williamson’s parents had proposed that
19 Prior to Mr Williamson giving his evidence, there was a discussion with him in which the privilege against self-incrimination was explained.
Mr Wicks should act for him. His parents also explained that the purpose of the meeting was introductory: Mr Williamson could then accept or decline to instruct him.
[32] There are no notes of the meeting, and there is a dispute about what was discussed at it. In one of his affidavits, Mr Williamson said that Mr Wicks told him not to admit the sexual activity to him because he would then be required to inform the court:
At my first meeting to discuss the prospect of Paul Wicks being employed to represent me at trial Paul has told me that should I, at any point, simply admit to him that I am in fact guilty of conducting sexual activity with the alleged victim that I would effectively be headed straight to prison.
This was apparently due to the fact that as part of being a lawyer that his overriding responsibility was to the court system itself. That as such he would in effect be therefore duty bound to immediately tell on me.
[33] Mr Wicks denied this, explaining in his affidavit that he would only have advised Mr Williamson of a likely sentence if he was convicted of the charges:
It is possible that in that initial meeting Mr Williamson asked me what the outcome might be if he was found guilty of the charges he faced, but I do not recall. If I was asked by Mr Williamson in that meeting what the likely sentence would be if he was convicted of the charges I would have advised him the likely sentence would be imprisonment in the region of 8-9 years imprisonment.
…
I would not have told Mr Williamson in that or any subsequent meeting that should he, at any point, tell me he was guilty that he would effectively be headed to prison. Nor would I have said to him in that or in any subsequent meeting if he told me he was guilty I would be duty bound to immediately tell on him.
[34] Despite having no notes of the meeting itself, Mr Wicks was able to refer to a document prepared and provided to him by Mr Williamson at around this time (he could not be certain whether it was before or after the meeting). In it, Mr Williamson said that his only sexual contact was with Z:
The police have got the wrong individual claiming to be the supposed victim. There was some sexual activity involved but it was between me and the home stay student [Z] aged 20 from China.
I believe that the relationship that occurred between me and [Z] was at all times consensual as I was very careful to establish this fact before initiating any behaviour.
[35] After explaining his relationship with Z at some length—and setting out his belief that Z had concocted and reported the story about SD as an act of revenge—he said:
… I did not engage in any sexual type activity with [SD] at all.
[36] In any event, a short time after Mr Williamson had left that first meeting, he returned to Mr Wicks’ chambers and spoke with his personal assistant, who then sent Mr Wicks an email recording:
1.02 pm Mark came into Chambers to see you. He asked me to tell you the following:
He said he has just had a meeting, his parents say “yes” but he says “no”. He is going to find another lawyer because he thinks you are too expensive.
[37] Nevertheless, the District Court file records Mr Wicks as appearing for him on 19 March 2014. On that day, Mr Wicks gave Mr Williamson a copy of the police disclosure he had received, which included a 120-page transcript of SD’s EVI. It is not, I think, disputed that this interview did give rise to questions about consent.
[38] On 21 March, Mr Williamson emailed Mr Wicks with an attached response to the Police disclosure file. In that response, he wholly denied sexual contact with SD and blamed both SD and the interviewing constable:
I dispute any sexual relationship with [SD] existed at all and having read the transcript have difficulty with the production of the police's summary of facts.
Also having witnessed [SD]’s highly sexualised behaviour and his apparent obsession with particularly gay type porn I can say for certain after reading the transcript that he is attempting to hide this by playing dumb as though he knows hardly anything about sex and he is also attempting to hide the blame for this by shifting the focus of all his guilt of this on to me.
…
The Electronically Recorded interview: -
The whole interview is shocking in its muddled and nonsensical form it appears to be simply jumbled mess. This is perpetrated not only by [SD] but also by the “Sexual stuff” obsessed Constable Lucy Kennedy.
Concerning [SD]’s role and my knowledge of him the issues would appear to be: -
That [SD] is already highly sexualised and is attempting to play the role of an unwitting innocent victim.
That he feels guilty for his highly sexualised behaviour- -that being the constant obsession of the gay porn watching at other people’s homes along with the masturbation and he is attempting to shift the focus of this guilt on to me.
He has a big ego. This is combined with his poor behaviour means that deception is required on a constant basis and I learnt early on to disregard almost everything he told me.
All this has been combined to play out with the helping hand of Constable Lucy Kennedy whom is coercing [SD] to spout all kind of sexually explicit words and nonsense and then she has carefully pieced these together to form the police summary and resulting charges.
…
[39] Commenting on specific passages from the transcript, Mr Williamson repeated that the sexual allegations were “utter nonsense” and “fantasy”, and said again that they had been manufactured and coerced:
Sexual Stuff all coerced by Constable Lucy Kennedy in order to manufacture criminal charges and lied about by [SD]. It has absolutely no bas[i]s in any reality I can think of he has seen many hours of gay sex and he has been moulded and coerced by [Z] behind my back and he also wants to place any guilty feelings he has for his own appalling behaviour onto me and all this after I have befriended him and attempted to put him on the correct path where his behaviour is concerned and I even told him that he was most likely not gay but just confused.
[40] On the morning of 19 May 2014, before a case review hearing, Mr Wicks met with Mr Williamson. Mr Wicks made notes of the meeting, which include Mr Williamson’s comments and instructions in respect of potential witnesses. Next to SD’s name is noted:
- No grooming for purposes of sexual contact
- Complete denial of allegations
- Confirm NG pleas to all charges.
[41]Later, the notes record:
Discuss potential for a sentence indication – cover issues such as plea to consensual intercourse (despite denial but for sentence indication purposes only).
Advise Mark of tariff on ‘G’ plea to consensual intercourse of starting point of 4 years less 25% ‘G’ plea plus other mitigating factors.
- Likely end result imprisonment 2.5 – 3 years
- If pleading to u/l sexual connection – imprisonment inevitable even on ‘G’ plea
- Mark instructs that does not want a sentence indication.
[42] On 2 July Mr Wicks met with Mr Williamson in his chambers. Although the notes of that meeting were not in evidence, a subsequent email from Mr Wicks records its details. At the meeting, Mr Williamson agreed that the defence case theory was that Z had concocted the allegations and that SD, also being upset with Mr Williamson, had been brought on board the conspiracy:
[Z] used you to get another Chinese student, [D], to move into the house.
[Z] fancied [D] and was hoping to have a relationship with him.
Once [D] moved out [Z] decided to move out and so he made a false complaint to the school he was attending as an overseas student and did not tell you.
You then discovered [Z] packing to leave at short notice and there was a confrontation in [Z]’s bedroom in front of [SD].
In that confrontation [Z] said he was going to move out that evening and [SD] was defending [Z].
In short, you and [Z] fell out because of the manner in which [Z] manipulated moving out by dropping you in it with a false complaint so he could move at short notice and avoid paying $510 in rent.
[SD] was also upset with you at the time because of the way you were trying to get [SD] to stop visiting your house.
[SD] was upset and disbelieving that you did not want him to visit any more.
Added to [SD]’s view of you was that he was unhappy with the heated exchange between you and [Z] on the day [Z] moved out.
[SD] has falsely accused you of sexual violation.
[43] This defence theory was reflected in a brief of evidence prepared for Mr Williamson and finalised at the 2 July meeting. In it, Mr Williamson recounted the history of his relationship and interactions with SD and confirmed that at no time did they have any form of sexual relationship. He specifically denied each of the allegations that formed the basis of the charges against him. He signed the brief of evidence.
[44] On 14 July, Mr Williamson provided Mr Wicks with further material for his brief of evidence, although Mr Wicks later expressed the view that this further material may raise issues of inadmissibility.
[45] In February 2015 there was an exchange of emails between Mr Williamson and Mr Wicks, initially prompted by an upcoming admissibility hearing about part of the evidence to be given at trial by Z.20 In the emails, Mr Williamson expresses disquiet about the defence “strategy” or “plan of attack”, although his primary focus seems to be the proposed response to Z’s evidence.
[46] For present purposes, it is relevant to note that Mr Wicks’ concern at that time was the prejudicial effect of any evidence about a consensual relationship between Mr Williamson and Z, and the admissibility issues surrounding any suggestion that [SD] might have had sex with someone else (probably Z). In response to Mr Williamson’s wider criticisms about the absence of a defence case, Mr Wicks explained how the defence case was to be advanced:
The central thrust of … your defence is that you did not have any form of sexual contact with [SD] and he has lied in saying you did. That defence case is able to [be] advanced through cross-examination of the Crown witnesses and the calling of any defence evidence that assists in raising the necessary doubt about [SD]’s allegations. An example of defence evidence that assists you is the DNA expert I have obtained a report from and which offers an alternative explanation to the propositions made by the prosecution expert.
…
I do not consider that your defence to [SD]’s allegations is materially advanced by there being any evidence of the conduct that did occur between you and [Z]. Going down that path is risking unfair prejudice against you by the
20 It was in the course of this exchange that the summary of the 2 July 2014 meeting was set out by Mr Wicks.
presiding Judge and will also likely open up the prosecution being able to put into evidence virtually all that [Z] says …
[47] Because of concerns voiced by Mr Williamson in a prior email, Mr Wicks also invited him to think about whether he wished to continue instructing Mr Wicks as his counsel. Mr Williamson then apologised for what he had said previously and said:
So no despite appearances we are all happy with proceedings and thank you for pointing this out to me, I will try to avoid such comments in the future.
[48] On 3 March the admissibility hearing took place. Judge Wade ruled the contested part of Z’s evidence admissible.21 In the course of his oral judgment, he noted:
[3] As I understand it, and this has been confirmed by Mr Wicks, the defence at trial is going to be one of total denial.
[49] There were further emails between Mr Williamson and Mr Wicks leading up to the trial in April 2015 that show moments of recurrent tension between them. It seems the entire chain, however, is not before the Court.
[50] The trial began on 20 April and continued over three days. Judge Down delivered his oral verdicts decision on the fourth day, 23 April. Mr Williamson was given a first strike warning and was remanded in custody for sentence.
[51] On 11 May, Mr Wicks met with Mr Williamson at Mount Eden Correctional Facility (MECF). It can be inferred from Mr Wicks’ notes of the meeting that Mr Williamson was by then admitting that sexual conduct with SD had occurred and saying that the defence “should have run consent”. Mr Wicks’ evidence was that he “would have” then given Mr Williamson advice about his appeal rights. Although he could not specifically remember what the advice was, he said: “I expect it would have been that [Mr Williamson’s] complete change in position from the evidence given at trial did not found an appeal”.
[52] On 15 and 19 May, Mr Williamson was interviewed by a probation officer to prepare a “Provision of Advice to Courts” (PAC) report. The report (dated 22 May)
21 R v Williamson [2015] NZDC 3103.
begins by recording Mr Williamson’s surprise at his conviction, and his contention that SD instigated the sexual relationship:
Mr Williamson appears for sentencing before the court for the first time. As he described, “I didn’t think any judge would convict me, I didn't think there was enough evidence that would lead to my conviction”. In explanation for the offending, Mr Williamson described having what he can describe as, “a relationship with the victim”. He states, “he drove it”, when describing the victim whom he alleges was the instigator of a sexual relationship. He confirmed his views on the Caption Summary in relation to Charge 1 in which he wrote, “he groomed me if anything”. He emphasised his suspicions of the victim already being well versed sexually prior to the offending taking place.
…
Mr Williamson presented with high expectations that things would go in his favour at trial because of the cost of his defence expenses and was more concerned with his financial losses than the long term impact his offending has had on others including his victim, his partner of 20 years, his immediate family and the community at large.
[53]Later, the PAC report writer notes:
Mr Williamson said “my legal defence failed me”. He also stated, “I absolutely believed I would be found innocent, the judge has taken everything the other way”, when discussing his views on his trial.
[54] There were further meetings between Mr Wicks and Mr Williamson at MECF on 3, 10, and 17 June and then on 6 July. Mr Wicks’ notes suggest that Mr Williamson was, again, critical of how he had run the defence case and was also critical of the PAC report’s accuracy.
[55] The 10 June notes also record Mr Williamson as saying, “if two years a suitable sentence would have admitted guilt”. At the later meetings, the question of restorative justice and reparation was discussed “now that acceptance of committing acts”. Mr Wicks’ notes of 6 July record: “main error of justice – took gamble on it never happening”.
[56]Mr Williamson was sentenced on 16 July 2015.
Relevant law
[57] The relevant principles regarding trial counsel error are well-settled. The starting point is what the Supreme Court said in R v Sungsuwan.22 And the effect of that decision was helpfully summarised by the Court of Appeal in R v Scurrah, where it emphasised that Sungsuwan requires focus on “… the trial process and its outcome rather than the characterisation of counsel’s conduct”.23
[58] There are three fundamental matters identified in Hall v R on which a trial lawyer’s failure to follow instructions will “almost inevitably” result in an unfair trial and, so, in terms of s 232(2)(c) and s 232(4)(b) of the CPA, a miscarriage of justice:24
(a)instructions as to plea;
(b)the election as to whether or not to give evidence; and
(c)deprivation of a defendant’s opportunity to advance a defence based on his or her account of facts.
[59] An appellate court must therefore focus on whether, as a matter of fact, there was a failure to follow instructions.25
[60] Trial counsel must present the defence that a defendant wishes to run. But there cannot be a failure to follow instructions if a defendant did not tell his or her lawyer which defence to advance. And an appellant is not entitled to recast his defence if the strategy pursued at trial failed.
[61] Finally, the duty to take and follow instructions on “significant” decisions that a defendant must make cannot occur in a vacuum. In Singh v R, the Court of Appeal described the duty as one that first requires the lawyer to explain the effects of those decisions to their client:26
22 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.
23 R v Scurrah [2006] BCL 894 (CA) at [13].
24 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [61].
25 At [69].
26 Singh v R [2017] NZCA 398.
[10] However, while a lawyer must obtain and follow a client's instructions on significant decisions “in respect of the conduct of litigation”, it is clear that “[t]hose instructions should be taken after the client is informed by the lawyer of the nature of the decisions to be made and the consequences of them”. Furthermore, when taking instructions including those relating to a plea, defence counsel must “ensure that his or her client is fully informed on all relevant implications of his or her decision … and must then act in accordance with the client’s instructions”.
Discussion
[62] The documentary record set out above makes it clear beyond doubt that in this case Mr Williamson’s instructions—up until the verdicts were delivered—were that the alleged incidents did not occur. Those instructions continued after receiving disclosure, which included SD’s account of those incidents, and right through to the end of the trial.
[63] It must be acknowledged that there is no written advice from Mr Wicks about the availability of a defence of consent or reasonable belief in consent for the more serious charges. But I am unable to accept that such advice was not given or that Mr Williamson did not understand that. The documentary record makes it plain that he understood the significance of consent from the outset (in the context of discussing his relationship with Z). Similarly, consent—and the difference between the lesser and more serious charges in that regard—was discussed in the context of Mr Wicks’ discussion with Mr Williamson about the possibility of a sentence indication. Mr Williamson’s response to that possibility makes it clear that his motivation was to avoid imprisonment altogether—and the only way he could achieve that was to deny everything, including the conduct alleged in the lesser charges.
[64] And lastly, both the record of Mr Williamson’s post-conviction discussions with Mr Wicks and the contents of the PAC report overwhelmingly suggest that Mr Williamson simply did not think that the Judge would believe SD and so “gambled” on the outcome at trial.
[65] As Ms Johnston submitted, it was not for Mr Wicks to decide what defence to run, or what Mr Williamson’s version of events should be. A lawyer is only able to present a case that his or her client “equips” them to run. Mr Wicks was obliged to present the defence case in accordance with his instructions, and in this case
Mr Williamson’s clear and unequivocal instructions were that no sexual activity with SD occurred. It therefore cannot be said that Mr Wicks failed to follow his instructions in relation to a fundamental trial decision—quite the contrary.
[66] For completeness, I record that even if I had concluded that Mr Wicks did not adequately advise Mr Williamson of the elements of the charges, I would not be persuaded that this caused a miscarriage of justice. The Judge’s verdicts decision makes it clear that Mr Wicks did, in fact, address the issue of consent in closing—no doubt based on SD’s interview.27 The Judge, too, devoted a considerable amount of time to dealing with the issue and acquitted Mr Williamson on two serious charges as a result. The best that could be said is that if Mr Williamson had instructed Mr Wicks to pursue a defence of consent, he would (presumably) have given evidence that SD was always the initiator of the sexual activity and that it was he—Mr Williamson— who was hesitant and had been “groomed”. It seems most unlikely (given the Judge’s careful analysis of the issue) that this would have made any difference.
[67] This ground of appeal cannot succeed. I am not satisfied there was any counsel error here.
Adequacy of District Court reasons for rejecting reasonable belief in consent
[68] As noted earlier, Mr Chisnall also suggested that the Judge’s handling of reasonable belief in consent shows an error in his assessment of the evidence that then caused a miscarriage of justice.28 He pointed out that, while the Judge found SD’s consent was “fluctuating”, he did not provide detailed reasons for his conclusions that Mr Williamson did not have a reasonable belief in consent. Mr Chisnall suggested that the Judge appeared to treat the absence of consent as a complete answer to the issue of reasonable belief.
[69] This ground of appeal effectively relies on the combined effect of the Supreme Court’s decisions in Christian v R and Sena v Police.29
27 I have since received a transcript of Mr Wicks’ closing address, which confirms this.
28 Criminal Procedure Act 2011, s 232(2)(b).
29 Christian v R [2017] NZSC 145, [2018] 1 NZLR 315; and Sena, above n 18.
[70] In Christian, the Supreme Court considered issues that arise regarding consent (and reasonable belief in consent) in the context of a jury trial involving sexual offending against young complainants, where the defence was one of complete denial. The Court said that all elements of the charged offences must be put to the jury, regardless of whether the defence puts them in issue:
[35] … trial Judges should, in cases involving sexual offences, give directions on all elements of the offence with which the defendant is charged. This will ensure that the jury knows the matters on which they must be satisfied beyond reasonable doubt for a guilty verdict to be entered. Such directions should be given even if consent or reasonable belief in consent are not put in issue by the defence. …
[71] The Court overturned the appellant’s convictions on the grounds that the trial Judge’s “failure to direct on consent and (possibly) reasonable belief in consent has occasioned a miscarriage…”.30 The Court held the jury might not have ruled out the reasonable possibility the complainant consented, albeit as a result of grooming.
[72] And in Sena, the Court clarified the approach to appeals against decisions in judge alone trials:
(a)An appeal under s 232(2)(b) is by way of rehearing.31
(b)If an appellate court comes to a different view on the evidence, then the trial Judge necessarily will have erred, and the appeal must be allowed.32
(c)But the appellate court is not to consider the issues afresh, as if there had been no first instance hearing. The appellant must show an error has been made.33
(d)In assessing error, the appellate court must consider any advantages that a trial judge may have had. So, where the challenge is to credibility findings based on contested oral evidence, an appellate court must
30 At [68].
31 Sena, above n 18, at [32].
32 At [38].
33 At [38].
exercise “customary” caution. The trial judge can evaluate the strengths and weaknesses of a case as the evidence emerges and can assess witnesses first-hand; an appellate court can only deal with a case based on the written record and counsel’s submissions.34
(e)The language of s 232(2)(b) requires a focus on the judge’s assessment of the evidence and the reasons for any conclusions. A failure to give reasons will frustrate the operation of s 232(2)(b) and may itself suggest a miscarriage of justice has occurred. Such a failure may also result in a defendant not receiving a fair trial (for which a reasoned judgment is essential).35
Discussion
[73] In this case, the trial Judge did not err in the assessment of the evidence at all, let alone to such an extent as to cause a miscarriage of justice:
(a)The Judge identified the critical issues in the case and explained why
and how those were resolved.
(b)The Judge turned his mind to all elements of the offences. Even though Mr Williamson’s defence meant that neither consent nor reasonable belief in consent were directly in issue, the Judge still considered those elements in light of the evidence before him, in accordance with the decision in Christian.
(c)As to consent, the Judge reviewed the relevant evidence thoroughly and addressed the facts in detail on a charge-by-charge basis. Moreover— and notwithstanding Mr Williamson’s defence—the conclusions reached about consent were carefully reasoned and resulted in individual (and differing) verdicts. Mr Williamson was appropriately given the benefit of the doubt and acquitted on some charges on the grounds of consent.
34 At [38]–[40].
35 At [36].
(d)As to reasonable belief in consent, the Judge expressly considered this as a separate element and recorded his conclusions. While detailed reasons for the findings were not provided, these were not required given the total absence of evidence on the issue. Nothing more was required in terms of Sena—to have gone further would have required descent into speculation.
[74]This ground of appeal must also fail.
Leave
[75]The usual considerations relevant to applications for leave to extend time are:
(a)the strength of the proposed appeal;
(b)the involvement of an individual’s liberty;
(c)the length and cause of the delay;
(d)the impact on others and on the administration of justice; and
(e)the absence of prejudice to the Crown.
[76] In Mr Williamson’s case, there are a number of factors that strongly militate against the exercise of the Court’s discretion to extend time:
(a)The absence of merit in the proposed appeal.
(b)The length of the delay.
(c)Mr Williamson’s explanation for the delay—which is contradicted by the documentary record. More particularly, his contention that he was not aware of the evidence against him or the content of the sentencing notes until he applied for parole is implausible. He was present at trial and at his sentencing. He was represented by experienced counsel, who
met with him several times after he was convicted. And soon after conviction he admitted to his lawyer that the evidence he had given at trial was false.
(d)The need for finality in criminal proceedings, particularly in a case of sexual offending.36
[77] Notwithstanding that I have traversed the merits of the conviction appeal in considerable detail above, I agree with Ms Johnston that this is a case where leave should ultimately be declined.
Sentence Appeal
[78] As noted earlier, the sentence appeal is predicated on the success of the conviction appeal. Leave to bring the sentence appeal out of time is also required. Given my conclusions that the conviction appeal could not succeed and that leave to appeal Mr Williamson’s conviction out of time should not be granted, it is not necessary to consider this further. Leave to appeal against sentence out of time is also declined.
Result
[79] Mr Williamson’s application for leave to appeal his conviction and sentence out of time is declined.
Rebecca Ellis J
Solicitors:
Crown Law Office, Wellington for Respondent
36 S (CA 88/2014) v R [2014] NZCA 583. The Court of Appeal emphasised the strong public interest in the final determination of cases of sexual offending because of the significant effects of a retrial on victims.
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