R v E

• Jurisdiction: New Zealand
• Judge: O'Regan J
• Judgment Date: 24 November 2009
• Neutral Citation: [2009] NZCA 554
• Docket Number: CA113/2009
• Court: Court of Appeal
• Date: 24 November 2009

BETWEEN

The Queen

and

E(CA113/2009)

[2009] NZCA 554

Judge

William Young P, O'Regan and William Young JJ

CA113/2009

IN THE COURT OF APPEAL OF NEW ZEALAND

Counsel:

W C Pyke for Appllent

B J Horsley for Crown

JUDGMENT OF THE COURT

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

• A We defer the application for exemption from the requirement in r 12A(2)(a) of the Court of Appeal (Criminal) Rules 2001 pending further discussions between counsel.

• B We reserve leave for the appellant to seek such an exemption later if discussions between counsel do not lead to an agreed solution.

REASONS OF THE COURT

(Given by O'Regan J)

Waiver of privilege

1 This case raises a number of issues in relation to r 12A of the Court of Appeal (Criminal) Rules 2001 (the 2001 Criminal Rules). The principal focus of the case is the requirement that where an appellant alleges trial counsel incompetence he or she must provide a written waiver of privilege to the prosecutor. The appellant argues that that requirement is inconsistent with the Evidence Act 2006 and ultra vires its empowering provisions in the Crimes Act 1961 and the Judicature Act 1908.

Background and issues

2 The appellant was convicted of one count of rape and one count of doing an indecent act on a young person under the age of 16 years. The offences occurred on the same day but there were two separate victims, both young cousins of his. He had earlier pleaded guilty to sexual violation by unlawful sexual connection and indecent assault, but was permitted to vacate those pleas (he waived privilege against the lawyers who had previously acted for him in that context). He was convicted after a jury trial and sentenced to a term of imprisonment of ten years for the rape charge and a concurrent term of two years for the indecent assault. He has appealed to this Court against both conviction and sentence.

3 One of the grounds of appeal which the appellant wishes to pursue at the hearing of his appeal is that he was inadequately represented by his trial counsel. This brings the appeal within the ambit of r 12A. That rule provides:

12 A Complaint against trial counsel

• (1) If a ground of appeal is that there was a miscarriage of justice because of the conduct of the appellant's counsel at the trial or sentencing, particulars of the conduct concerned must be given in-

  • (a) the notice of appeal; or

  • (b) a memorandum to be filed and served by the appellant within 30 working days of filing the notice of appeal.

• (2) The appellant must, within 30 working days of filing notice of appeal,-

  • (a) provide to the prosecutor a written waiver of privilege addressed to the appellant's counsel at the trial or sentencing; and

  • (b) file and serve on the prosecutor any affidavits that relate to the ground of appeal.

• (3) If the appellant considers that a waiver of privilege is inappropriate, the appellant may apply for an exemption from subclause (2)(a) and the Court, if it considers that an exemption is appropriate, may grant it.

• (4) The prosecutor must file and serve any affidavit in reply within 15 working days after service of the appellant's affidavit.

4 As noted earlier, the significant feature of r 12A for the purposes of the present application is the requirement that a waiver of privilege addressed to the appellant's trial counsel must be provided to the prosecutor (r 12A(2)(a)) unless the appellant considers that a waiver is inappropriate, in which case an exemption may be sought (r 12A(3)).

5 In the present case, the appellant has instructed his appeal counsel, Mr Pyke, that he will not give a waiver. On 18 June 2009, the appellant filed a memorandum setting out his grounds of appeal and applying for an exemption from the requirement to give a waiver. On 22 June, Chambers J issued a minute in which he recorded that Mr Pyke intended advancing his argument on two fronts, namely that:

• (a) Rule 12A is inconsistent with the provisions dealing with privilege in the Evidence Act, and is thus partly or wholly ultra vires;

• (b) Even if r 12A is valid, this is an appropriate case for the Court to grant an exemption under r 12A(3).

6 Chambers J decided that the appellant's application should be determined separately from the appeal. He asked that counsel address the two issues identified above and, in addition, whether an application for exemption under r 12A(3) could be dealt with by a single judge of this Court, or required a decision of a panel of three judges.

7 Before turning to those issues, we briefly outline the grounds of appeal which touch on the performance of the appellant's counsel at trial, set out the statutory provisions under which r 12A was made and the history to that rule, and consider the rules and practices in relation to similar issues in other jurisdictions.

Grounds of appeal

8 Mr Pyke argued that the grounds of appeal that relate to the performance of trial counsel are matters which can fairly be evaluated from the trial record. He said that, to the extent that the Crown needs to hear from trial counsel on these issues, it will be possible for trial counsel to explain his actions without the need to refer to privileged information. In order to evaluate that argument, we need to consider the grounds of appeal which are to be advanced.

9 The appellant's grounds of appeal, set out in the 18 June memorandum, fall into two categories: those alleging trial counsel errors or incompetence, and those alleging errors of law made by the trial Judge. For the purposes of this application, only the first category is relevant. In summary, those grounds allege the following errors on the part of trial counsel:

• (a) Cross-examining, without any evidential foundation, the complainants on the basis that they had colluded;

• (b) Failing to object to the admission of prior consistent statements made by the complainants;

• (c) Adducing evidence of a prior consistent statement made by one complainant;

• (d) Failing to ensure comments on the appellant's character in one complainant's interview were edited out;

• (e) Failing to request the trial Judge give an identification direction to the jury pursuant to s 126 of the Evidence Act;

• (f) Failing to cross-examine Detective Nicholas adequately about a discussion with the appellant prior to the recording of his video interview;

• (g) Failing to request the trial Judge warn the jury, pursuant to s 122 of the Evidence Act, about the reliability of Detective Nicholas' evidence as to what the appellant said prior to his video interview;

• (h) Failing to challenge the Crown case in relation to the indecent assault charge; and

• (i) Failing to present a coherent or soundly argued closing address.

10 At the hearing before us, Mr Pyke said the first three grounds of appeal – relating to collusion and the complainants' prior consistent statements – were unlikely to be pursued, although he was yet to receive instructions on this from the appellant.

The empowering statutory provisions

11 The 2001 Criminal Rules are made under s 409 of the Crimes Act and s 51C of the Judicature Act. Those sections relevantly provide:

409 Rules of Court

(1) There may be made under the Judicature Act 1908 rules of Court regulating the practice and procedure in proceedings under this Act in the Supreme Court, the Court of Appeal, the High Court, and District Courts, or any of them.

…

51C Power to make rules

(1) The Governor-General in Council, with the concurrence of the Chief Justice and any 2 or more of the members of the Rules Committee, of whom at least one shall be a Judge, may, for the purposes of facilitating the expeditious, inexpensive, and just dispatch of the business of the Court, or of otherwise assisting in the due administration of justice, from time to time make rules regulating the practice and procedure of the High Court and of the Court of Appeal and of the Supreme Court (including the practice and procedure on appeals from any court or person to the Supreme Court, the Court of Appeal, or the High Court).

…

History to rule 12A

12 Neither the Criminal Appeal Rules 1946 nor the Court of Appeal (Criminal) Rules 1997 (the 1997 Criminal Rules) contained any provision analogous to r 12A. This perhaps indicates that, at least prior to 1997, appeals were rarely argued on the basis of trial counsel incompetence.

13 A rare example is R v Horsfall [1981] 1 NZLR 116 (CA). In that case, one of the grounds of appeal related to whether, because of ill health, trial counsel had properly represented the appellant's interests. In order to investigate this ground, the Court asked appellate counsel to interview trial counsel. The judgment records, at 118, that the appellant waived privilege. Subsequently, in R v Afeaki CA14/95 25 August 1995 at 2, this Court made it clear that ordinarily privilege was expected to be waived:

At the outset there are two general points of some importance. First, some of the grounds urged for the appellant by counsel appearing today amount to criticism of the conduct of the trial and matters before trial on the part of counsel then representing the accused, who was an experienced counsel, Mr Fulton. Nothing that has been put before us has led this Court to think that trial counsel represented in his client in any way without the judgment and competence to be expected; but it should be made clear that, if an attack of this kind is to be made, the appropriate course is formally to specify the complaints and to give the counsel concerned an opportunity of replying or commenting or even accepting the complaints by affidavit, for which purpose it would be necessary for the appellant to waive privilege. In the present instance that was not done.

(Emphasis added)

14 The requirements noted in Afeaki were formalised shortly after the 1997 Criminal Rules...