Behymer Jr v R Coa

• Jurisdiction: New Zealand
• Judge: Fogarty J
• Judgment Date: 05 July 2012
• Court: Supreme Court
• Date: 05 July 2012
• Docket Number: CA190/2011

[2012] NZSCA 297

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

White, Rodney Hansen and Fogarty JJ

CA190/2011

Between

Thomas Gerald Behymer Jr

Appellant

and

The Queen

Respondent

Counsel:

R M Mansfield for Appellant

M D Downs for Respondent

• A The application to adduce further expert evidence is declined.

• B The appeal against conviction is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Fogarty J)

Introduction

1 The appellant appeals to this Court against his conviction for indecent assault and male assaults female, two of seven counts considered by the jury at his trial in the District Court. The indecent assault involved the appellant ejaculating onto the face of the complainant. The male assaults female involved the appellant strangling the complainant.

2 The complainant was a prostitute who had been engaged by the appellant. The incident arose during a second sexual encounter between the couple. Earlier in the day the two of them had had consensual sexual intercourse at the appellant's home. They then went out to dinner and on to the casino, arriving back at the appellant's home later in the evening. What happened thereafter was disputed.

3 It was the Crown case that the complainant, at the request of the appellant, lay down on the bed on her back. She was then forcefully turned over on to her stomach, her arms being restrained and her head pulled up and forced into the mattress. While in that position the accused remained on top of her and penetrated her vagina with his penis from behind. This caused the complainant considerable pain. She asked the appellant to stop, but the sexual violation and assault continued, including slapping her buttocks, turning her over onto her back and forcing his penis into her mouth. The appellant put his hand around the complainant's neck and with the other hand, pushed her down on the stomach. Later he slapped her and forced his testicles into her mouth, making her suck them before ejaculating over her face.

4 The appellant was charged with seven counts:

1

rape; 2. sexual violation by unlawful sexual connection between his penis and the complainant's mouth; 3. sexual violation being the connection between his testicles and the complainant's mouth; 4. slapping the complainant on her vagina; 5. slapping the complainant's buttocks; 6. indecent assault by ejaculating on the complainant's face; and 7. assaulting a female by strangling the complainant.

5 The jury could not agree on counts 1 to 5.

6 There was a second trial in respect of those counts. The appellant gave evidence at the second trial and was acquitted.

7 There were originally three appeal points against the convictions on counts 6 and 7:

1

The Judge erred in directing the jury on the law in her summing up. 2. Whether the appellant's conviction on the two charges was inconsistent with the jury being hung on the balance of the indictment, thereby creating an unreasonable verdict. 3. Did the appellant's trial counsel prevent the appellant from testifying?

8 The first two points were abandoned. Leave was granted, unopposed, at the hearing to adduce a further ground of appeal, which is that there is fresh evidence from an expert, Dr Jane Brennan, a forensic scientist. Dr Brennan's report details the absence of evidence on the bed sheets and pillowcases uplifted from the scene that is consistent with the complainant's contention that her face was forced into the bedding after she had been turned over.

First ground – the trial counsel complaint

9 The applicable principles in this area are accurately stated in Adams on Criminal Law: 1

It is ultimately for an accused, not for counsel, to decide whether he or she will give evidence: R v Accused (CA78/88) [1988] 2 NZLR 385; (1988) 4 CRNZ 208 (CA), at 390; 213. Counsel must “put before their client all the pros and cons of giving evidence and thus to ensure that their client makes an informed choice on that issue” : R v K (CA421/08) [2009] NZCA 176 at [41]. Any advice must take into account not only whether the accused will be a good witness but whether the accused's case can be effectively advanced without his or her testimony: Chambers v R [2011] NZCA 218, at [15]. While counsel may recommend a course of action, it must be made

clear the accused is free to reject that advice: Nightingale v R [2010] NZCA 473, at [12]. Having given that advice, counsel should obtain clear instructions as to whether the accused will give evidence, and also as to the adoption of any other trial tactic affecting that issue: R v K (CA197/07) [2008] NZCA 3 at [41]. An accused who knows of the right to give evidence but accepts firm and soundly based advice from counsel not to testify has not been denied the right to give evidence: R v Le 14/9/00, CA208/00; CA209/00. It is not necessary for counsel to inform the accused of the standard trial directions given by Judges when an accused does not give evidence: R v Manuchhima 1/12/06, CA185/06 at [19]. It will be unusual that advice not to give evidence, which was freely adopted by the accused, has led to any miscarriage of justice: R v Palmer [2007] NZCA 113 at [17] ; compare R v B 12/12/05, CA121/05 at [48] (sound advice not to testify not wrong because risks of cross-examination on accused's prior convictions was rather overstated).

10 At the end of the Crown case, the appellant signed a document which had been written at the dictation of senior counsel, Mr Mark Edgar. It reads as follows:

I Thomas Gerald Behymer Jr.

DO NOT wish to give evidence. Making this decision is based on my complete DVD being shown to the Jury. As well as the expert opinion of my Attorneys Mr Mark Edgar and Mr Michael KAN. And expert evidence given by the Crown's professional experts. In addition to the 2 Experts Mrs EYTON & Mrs Laking. Furthermore, my defences benefit of input by Dr Jane Brennan & Dr Clare Healy. And with all parties information I am confident the jury will make an honest opinion based on the evidence before them.

[Signed

Thomas G. Behymer Jr. 2/12/10]

[Witnessed]

(indecipherable)

11 The point on appeal was summed up in a variety of ways. In the notice of appeal it was stated:

My counsel overborne [sic] my intention and desire to give and call evidence at my Trial on the issue of consent.

Mr Mansfield in his written submissions described the point as:

That the Appellant declined to give evidence at trial due to duress.

Mr Downs described it in two different ways:

[D]id trial counsel prevent the appellant from testifying?

And more generally:

Did defence counsel place “undue pressure” on his client not to give evidence.

12 Ultimately the question is whether or not there has been a miscarriage of justice. Section 385(1)(c) of the Crimes Act 1961 provides:

• (1) On any appeal to which subsection (1AA) applies, the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion-

• …

• (c) That on any ground there was a miscarriage of justice;

13 We are guided by the decision of the Supreme Court in R v Sungsuwan : 2

[65] Where error or irregularity is alleged and attributed to counsel, but that would not have affected the outcome – was not material – there will be no need to analyse and judge the conduct of counsel. On the other hand, where the complaint is that counsel's conduct was such as effectively to deny the accused representation to fairly present the defence, prejudice to the outcome will be readily found – and in extreme cases may need no inquiry.

[66] There will be cases in which particular acts or omissions of counsel may in retrospect be seen to have possibly affected the outcome but they were deliberately judged at the time to be in the interests of the accused. In some cases the accused will have agreed or acquiesced – only to complain after conviction. Where the conduct was reasonable in the circumstances the client will not generally succeed in asserting miscarriage of justice so as to gain the chance of defending on a different basis on a new trial. Normally an appeal would not be allowed simply because of a judgment made by trial counsel which could well be made by another competent counsel in the course of a new trial.

[67] But there will be cases, rare cases, as was recognised in Pointon, where the conduct of counsel, although reasonable in the circumstances in which it occurred, nevertheless can be shown to have given rise to an irregularity in the trial that prejudiced the accused's chance of acquittal (or conviction of a lesser offence) such that the appeal Court is satisfied there was a miscarriage of justice. The Court will always reserve the flexibility to identify and intervene to prevent a miscarriage of justice however caused.

14 The Supreme Court helpfully summarised the test as follows:

[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the

outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel's conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.

15 The ultimate question in this case is whether the firm and soundly based advice from counsel not to testify in fact denied the appellant the right to give evidence.

16 In support of his appeal the appellant filed an affidavit. This affidavit reviewed the whole of the...