E(No 3) v R

JurisdictionNew Zealand
JudgeGlazebrook,Winkelmann,Venning JJ
Judgment Date23 November 2010
Neutral Citation[2010] NZCA 544
Docket NumberCA113/2009
CourtCourt of Appeal
Date23 November 2010
BETWEEN
E(CA113/2009)(NO 3)
Appellant
and
The Queen
Respondent

[2010] NZCA 544

judges:

Glazebrook, Winkelmann and Venning JJ

CA113/2009

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal against convictions for sexual offending — two grounds of appeal previously upheld (defence counsel's inadequate closing address and lack of identification warning in regard to one complainant) — whether the proviso under s385(1) Crimes Act 1961 (determination of appeals in ordinary cases — appeal to be dismissed if no substantial miscarriage of justice had actually occurred) should be applied in terms of the test in R v Matenga and R v Howse — whether the appellant had received a fair trial — whether the guilty verdict had been inevitable on the evidence.

counsel:

W C Pyke for Appellant

M D Downs for Respondent

The appeal is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No

Introduction

[1]

Did Mr E receive a fair trial?

[5]

The law

[6]

Application of the principles to this case

[20]

Should the proviso be applied?

[29]

The law

[29]

The evidence at trial

[32]

J's evidence

[33]

H's evidence

[46]

Cousin's evidence

[49]

Mr E's video interview

[50]

Mr E's evidence at trial

[59]

Police officer's evidence

[71]

Inconsistencies in Mr E's evidence

[73]

Our assessment: Mr E's evidence

[74]

Our assessment: H's evidence

[89]

Our assessment: J's evidence

[86]

Overall conclusion

[94]

Result

[96]

Introduction
1

Mr E was convicted of sexual offending against two of his young cousins: the rape of his cousin J (who was 14 years old at the time of the offending) and of doing an indecent act on a person under 16 years old (his cousin H who was 12 at the time of the offending). The offending occurred on Christmas Eve of 2006 on a marae at a family reunion.

2

Mr E appealed against these convictions. On 5 July 2010 we issued a judgment in the appeal upholding two of the grounds of appeal (based on defence counsel's closing address and the lack of an identification warning with regard to H). 1 We convened a further hearing on whether we should apply the proviso to s 385(1) of the Crimes Act 1961. 2

3

At the resumed hearing we viewed the video interviews of the complainant, H and Mr E. We also listened to the recording of the parts of J's evidence and cross— examination dealing with the rape and to the most relevant parts of the recording of H's cross-examination, Mr E's evidence-in-chief and cross-examination. Both parties were content to rely on the transcript of the evidence in all other respects.

4

There are two issues we now need to address:

  • (a) whether, despite the errors we have identified, Mr E had a fair trial;

  • (b) whether the proviso should be applied in terms of the test in R v Matenga. 3

Did Mr E receive a fair trial?
5

As the Supreme Court said in Matenga, the New Zealand Bill of Rights Act 1990 (Bill of Rights) does not require that a further jury trial should always be ordered if a miscarriage at the first trial has been identified. 4 However, before the proviso to s 385(1) of the Crimes Act can be considered, the Court must be satisfied that overall there has been a fair trial. 5

The law

6

The test for whether there has been an unfair trial is a high one and not all errors will undermine the integrity of a trial. The Privy Council articulated the test in the following way in Randall v R: 6

There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate Court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.

7

In R v Howse 7 the issue was whether this Court had been wrong to apply the proviso in circumstances where prejudicial evidence had been held to have been wrongfully admitted. While the Privy Council was divided as to whether or not the

trial had been fair, there was essential agreement on the test to be applied. Both the majority and the minority approved the approach in Randall v R. 8 Both also referred to the High Court of Australia decision in Wilde v R. 9
8

In Wilde the majority stated that the proviso was not intended to provide a retrial before an appellate court in a case where the proceedings before the trial court had so far miscarried as hardly to have been a trial at all. The majority went on to say that the proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings. Whether any error is of such a magnitude must be determined not in accordance with a rigid formula, but after consideration of all the circumstances of the case. 10

9

The Privy Council in Howse held that the nature and extent of the evidence against the accused is of relevance in any inquiry as to whether a trial has been fair, at least where the issue related to inadmissible evidence. 11 However, while the strength of the evidence available to the Crown and the apparent weakness of the defence case can be taken into account when deciding the threshold question of whether a trial is fair, this is only as a factor to be considered in assessing the significance of any errors in the trial process: ie whether they were so significant that the trial was not fair in the sense the term was used in Randall and Wilde. The question at this stage is not whether conviction was inevitable. 12 As we have noted above, even if conviction were inevitable, the proviso cannot be applied if the trial was unfair, in the sense that term was used in Wilde. The right to a fair trial is an absolute right to be enjoyed even by the clearly guilty.

10

The threshold for whether a trial is unfair must, however, be kept high so that the operation of the proviso is not stultified. 13 We would add that this is particularly important where there are identifiable victims involved. Victims should not have to suffer the ordeal of a second trial where guilt is clear and the first trial (albeit subject to error) met the basic standards of fairness.

11

Mr Pyke, for Mr E, attempted to distinguish Howse on the basis that Howse related to inadmissible evidence, whereas Mr E's case relates to the right to counsel, itself guaranteed by the Bill of Rights 14 and a fundamental component of the right to a fair trial. In Mr Pyke's submission, the right to counsel must mean the right to competent counsel. The Crown submits that even major shortcomings of defence counsel do not necessarily lead to an unfair trial in the sense the term is used in Howse and Matenga.

12

We accept the Crown's submission. The majority in Howse made no distinction as to the type of errors that can be made, but which still do not reach the high threshold of creating an unfair trial. Indeed, the conduct of counsel was specifically included as an example of a type of error that does not necessarily lead to an unfair trial. The majority said: 15

There may be errors in the course of a trial, whether relating to the admission of evidence or in legal rulings or in the terms in which the Judge sums up to the jury or in the conduct of the Judge or counsel, which, while they can be described as giving rise to unfairness, do not constitute such grave irregularities and so undermine the integrity of the trial that it can be said that the accused was denied a fair trial. On the other hand, there may be some trials where, notwithstanding the overwhelming weight of the evidence against the accused, the proceedings at trial have been so defective that there has scarcely been a trial at all, with the result that the proviso cannot be applied. (Emphasis added)

13

Mr Pyke also referred us to the decision of this Court in R v Boyd. 16 In that case the appeal against conviction on two counts was allowed on the basis of a failure to follow express instructions on how to put the appellant's case, especially in regard to the closing address that had been given. This Court held that trial counsel's

failure to follow prior instructions had “created an unfair trial” 17 We do not consider that the Court was using the term “unfair trial” in the Howse and Matenga sense. The term “unfair trial” is often used in a general sense to denote a trial that contains error. It does not necessarily mean that there has been an error going to the root of the trial process and thus creating an unfair trial in the specialised Howse/Matenga sense
14

For a case where the conduct of counsel and the question of a fair trial (in the Howse/Matenga sense) was at issue, the Crown points to the High Court of Australia decision in Nudd v R. 18 We accept the Crown's submission that Nudd bears a good deal of resemblance to Mr E's case. In Nudd, the defendant was convicted of importing cocaine into Australia following a trial in which he was represented by a grossly incompetent counsel. Defence counsel had misunderstood the law in relation to the ingredients of the offence and failed, in preparing for the trial, to take a full brief of the defendant's account and then advise his client in accordance with the applicable law. These functions were, as Kirby J observed, “rudimentary to the duties of a lawyer”. 19

15

The defendant's appeal to the High Court was based upon the proposition that such incompetence “went to the root of his representation at trial” so that he...

To continue reading

Request your trial
2 cases
  • E (Ca799/2012) v R
    • New Zealand
    • Court of Appeal
    • 19 December 2013
    ...102 but did not comment on the demeanour issue. 15 Paul Ekman Telling Lies (Berkley Books, New York, 1986). 16 E (CA113/09) v R (No 3) [2010] NZCA 544. 17 At [75] citing Aldert Vrij Detecting Lies & Deceit: Pitfalls and opportunities (2nd ed, John Wiley & Sons, Chichester, 2008) at 18 Sate......
  • Auckland Standards Committee No. 5 v Christopher Michael Clews
    • New Zealand
    • Lawyers and Conveyancers’ Disciplinary Tribunal
    • 3 March 2014
    ...Practitioner's closing address; and the lack of an identification warning with regard to one of the victims. In E v The Queen (No. 3) [2010] NZCA 544, the Court of Appeal applied the proviso and dismissed the appeal. 4 On 27 October 2011, a Wellington Standards Committee determined that th......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT