Wall v R Coa

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeHarrison J
Judgment Date13 Aug 2011
Neutral Citation[2011] NZCA 529
Docket NumberCA702/2010

[2011] NZCA 529

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Harrison, Rodney Hansen and Andrews JJ

CA702/2010

BETWEEN
W (CA702/2010)
Appellant
and
The Queen
Respondent
Counsel:

N Levy for Appellant

S B Edwards for Respondent

Appeal against conviction and sentence — appellant found guilty on retrial of charges of historical sexual offending against his stepdaughter — appealed on ground that retrial counsel's advice that he not to give evidence or call witnesses was erroneous and resulted in miscarriage of justice — whether inability of jury at first trial to agree was of relevance in determining if counsel erred at retrial — whether the appellant was fully informed of his options when his counsel advised him not to give evidence or call witnesses or was he forced by his counsel into accepting that course of action — whether the sentence imposed on the appellant was manifestly excessive.

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

The issues were: whether drawing inferences from the inability of the jury at the first trial to agree was of relevance in determining if counsel had erred at retrial; whether counsel had been fully prepared or his performance at trial had been inadequate; whether W was fully informed of his options when M advised W not to give evidence or call witnesses or was W forced by M into accepting that course of action; whether the sentence imposed on W was manifestly excessive.

Held: The jury's inability to agree at the first trial was of no relevance in determining if counsel erred in the second trial leading to a miscarriage of justice. The court frequently heard appeals against conviction on a retrial following a jury disagreement at the first trial, but there was no authority to suggest that the different results were of themselves material. There was no benefit to be derived by comparing either the results of the two trials or the defence strategies adopted at each. To draw an inference based upon the jury's inability to agree at the first trial only invited speculation as to its reasoning.

There was nothing to suggest that either the quality of M's advice to W or his performance at trial was adversely affected by inadequate preparation or that any inadequacy had a bearing on the result. Even though M had a relatively limited time within which to prepare for trial, the case was not complex and M had the benefit of the evidential transcript from the first trial and W's original counsel's file. Having reviewed the extensive notes and the evidential transcript of the trial, it could not be said that M's preparation was inadequate.

M's defence strategy was not misplaced. M was expressly conscious of the risk W would run in not calling evidence at the retrial but he concluded that the risks associated with calling W and his proposed witnesses would outweigh any benefit from following that course and advised accordingly. M's advice to W not to give evidence and call witnesses could not be said to be unreasonable in the circumstances.

Based on of the facts, this was not one of the rare cases falling into the fourth category of the spectrum identified in R v Sungsuwan, where despite the reasonableness of M's advice an irregularity remained which prejudiced W's chance of acquittal. The result of the trial could not possibly have been affected even if W and his witnesses had given evidence, nor were the verdicts in any way unsafe.

W's literacy was limited but he was neither naive nor uninformed. There was no doubt he had engaged fully with his counsel during preparation for the second trial. There was evidence from Willis, who assisted M in the trial, that at a meeting three days prior to the close of the Crown's case W had been fully informed and had not been bullied. W was again fully informed of the options available when at the close of the prosecution case M advised the court that he would not be calling evidence. M had reviewed his original advice, not to give evidence or call witnesses. He emphasised the risk associated with not calling W, but W made that decision freely for himself. It could not be accepted that W had been bullied by his counsel in the earlier meeting and M and Willis's denials of undue pressure were accepted.

A sentence of 15 years imprisonment was not manifestly excessive but was appropriate to represent W's culpability and in particular the serious emotional harm caused to his victim. The trial judge's notes made it clear that he would have adopted a starting point of 17 years for the charge of rape were it not for the absence of physical violence and of multiple victims. The judge adopted a starting point which was actually lower than that prescribed for band four offending in R v AM. The judge was satisfied that repeated charges of rape against a family member over a period of years placed the offending squarely within band four but he took into account that the two offences of rape on a representative basis may have been less than those which were at issue.

There was no doubt that the offending warranted the imposition of a minimum period. Imposition of a minimum period of 50 per cent of the finite sentence was almost standard in offending for serious sexual offending against a young child ( R v Gordon).

Appeal against conviction and sentence was dismissed.

The appeal is dismissed.

Contents

Introduction

[1]

Background

[5]

First trial

[10]

N's evidence in chief

[10]

N's cross-examination

[14]

Defence strategy

[19]

W's evidence

[22]

Defence witnesses

[25]

New counsel

[35]

The second trial

[44]

Legal principles

[55]

Decision

[64]

(a) First ground: counsel error

[64]

(i) Introduction

[65]

(ii) Trial performance

[66]

(iii)Preparation

[67]

(iv) Defence strategy

[69]

(v) W

[77]

(vi) W's witnesses

[80]

(vii_)Conclusion

[92]

(b) Second ground: no consent

[97]

(i) Introduction

[97]

(ii) W's capacity

[99]

(iii) Coercion

[101]

(iv) Conclusion

[113]

Sentence

[115]

Result

[122]

REASONS OF THE COURT

(Given by Harrison J)

Introduction
1

W was found guilty at a trial before a Judge and jury in the District Court at Napier on five representative charges of historical sexual offending against his stepdaughter. He was convicted and sentenced by the trial Judge, Judge Adeane, to 15 years imprisonment with a minimum period of seven and a half years. 1 W appeals against both his conviction and sentence.

2

The jury's guilty verdicts were returned at a retrial. W had given evidence and called witnesses in his defence at his first trial when he was represented by Mr Petherick. That jury was unable to agree on his guilt on any of the charges. W was represented at his retrial by a different lawyer, Mr Malik. On Mr Malik's advice he did not give evidence or call witnesses.

3

W appeals on the ground that Mr Malik's advice gave rise to a miscarriage of justice. His counsel in this Court, Ms Levy, advances two grounds in support: first, that the manner of Mr Malik's advice against calling evidence usurped W's right to make an election himself after being given clear and informed advice on the issue; and, second, or alternatively, that Mr Malik's advice was fundamentally erroneous because, without evidence by or for W, his stepdaughter's account would be the only

version of events in evidence at trial. However, the second ground of appeal should logically be determined first.
4

We will start by summarising the background circumstances and reviewing the relevant aspects of both trials. That is because they provide the necessary context for consideration of the ultimate question of whether justice has miscarried. The answer will normally be found by a two stage enquiry: was Mr Malik's advice erroneous and, if so, is there is a real risk that it affected the result? 2 The issue of whether W acquiesced in Mr Malik's advice falls generally for consideration within the first stage (see at [55](c) below).

Background
5

In 1996 W entered into a de facto relationship with L, the mother of his stepdaughter, N, who is the complainant. He was then aged about 25 years. He moved into L's Napier home. In 1998 the family shifted to Dannevirke in search of work for W. The Crown's case was that soon afterwards, when N was eight years old, W began to behave inappropriately towards her. The offending started with him touching her genitalia over her underwear, escalating to touching and kissing her bare skin, mutual masturbation and oral sex.

6

Two incidents of rape were alleged. They were the subject of a representative charge that between May 1996 and October 1999 W sexually violated N by rape. That charge and more particularly one of the two alleged incidents, assumed prominence at W's first trial (see below at [10]–[18]).

7

When she was aged 11 years, N disclosed the abuse to her friend's mother after hearing her friend recount how she had been abused. N then understood that W's conduct, which she had previously considered normal, was wrong. N disclosed the offending to her mother who refused to believe her. Her mother struck N for lying and directed N to await W's return from work so they could discuss her allegations. N ran away and was later placed into care by the Child, Youth and

Family Service (CYFS). N was unwilling to repeat or describe her allegations to a CYFS interviewer a month later. However, N's complaint resurfaced in 2009 when she was interviewed by police investigating a domestic incident. She then made a formal statement.
8

The police interviewed W in January 2010. He briefly but emphatically denied the allegations and refused to make a full statement. He was then charged with one count of rape; two of unlawful oral sexual connection; and two of sexual...

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