Wall v R Coa

• Jurisdiction: New Zealand
• Judge: Harrison J
• Judgment Date: 13 August 2011
• Neutral Citation: [2011] NZCA 529
• Docket Number: CA702/2010
• Court: Court of Appeal
• Date: 13 August 2011

BETWEEN

W (CA702/2010)

Appellant

and

The Queen

Respondent

[2011] NZCA 529

Court:

Harrison, Rodney Hansen and Andrews JJ

CA702/2010

IN THE COURT OF APPEAL OF NEW ZEALAND

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.

Counsel:

N Levy for Appellant

S B Edwards for Respondent

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 indecency including touching and inducing an indecent act. All counts were representative.

9 Two further sets of criminal proceedings, while forming part of the general background, are not directly relevant to this appeal. First, just before the first trial W was discharged on separate counts of sexual offending (initially joined in a single indictment containing the charges arising out of N's complaint) against his biological daughter, S. L is also S's mother. Secondly, L was convicted in the District Court of the wilful neglect of both her daughters, N and S, by knowing of or suspecting W's abuse of them but failing to take any preventative steps. Her appeal against conviction after trial and a sentence of one year's imprisonment was dismissed by this Court. 3

First trial

N's evidence in chief

10 The primary focus of W's defence at the first trial was the charge of raping N. N's account of the first of the two alleged incidents (she remembered little of the second one) was as follows. One evening she was in the bedroom shared by W and L at their Dannevirke home. The adults were in the lounge drinking with W's mother and step-father, Mrs and Mr C, and some other guests. According to N, W and L were regular and heavy drinkers.

11 N's older brother, B, and W's then nine year old half brother, JC (Mr and Mrs C's son), were also in the bedroom. Both were sitting on the floor at the foot of the bed. N was lying in the bed under the covers. Together she and the two boys were watching television.

12 W came in to the bedroom wearing only a towel. He jumped into the bed with N. He started to cuddle N and removed her pants and underwear. He then put his penis inside her vagina. But he stopped and left the room after a couple of minutes when one of the boys, who were still at the foot of the bed, made a noise. The boys did not say anything and N was unsure whether they knew what had been happening.

13 N also gave evidence about the related but less serious offending which occurred regularly over a three year period, the oral sex being less frequent. It occurred mostly in the bed shared by W and L, sometimes while the latter was sleeping there.

N's cross-examination

14 Mr Petherick focussed his cross-examination on N's recollection of the night of the rape. He accused N of fabricating her complaints. While she remembered the address that the event occurred at, and that Mrs C, Mr C and JC were visiting from Napier, N conceded that she could not remember whether the event had occurred in winter; or whether the children had had fish and chips for dinner; or the time of the Cs' arrival. Mr Petherick suggested to N that the only time W “came near that room that night, was when he came down from the lounge to his and [L]'s bedroom to find out what [the argument was about]”; and further that when he did so he only came as far as the doorway.

15 N could not remember any argument. It was put to her that:

Q There will be evidence called from the stepfather [Mr C] that [W] was in the lounge the entire evening with the exception of that one period where he went down to see what was going on and try and stop the fighting amongst the kids?

N responded:

A Of course he would. They were all drinking. I don't think any of them could really remember anything that happened that night.

16 Other lines of Mr Petherick's cross-examination relating directly to N's complaints focused on L being a light sleeper; whether there was in fact a shower at one address where N said W used to enter the bathroom and watch her shower; and that it was too cold in Dannevirke and W was too skinny to walk around the house naked or only wearing a towel — contrary to N's claim that he often did so.

17 Mr Petherick also suggested to N that she had a motive to lie; that was because W tried to maintain strict rules such as not allowing N to wear makeup or to have piercings. N denied that she “never” liked W. She had initially called him “Dad”. She only came to dislike him because of the offending. In general, Mr Petherick suggested that N had had a troubled upbringing for which she was trying to blame W and “get back” at her mother.

18 More generally, Mr Petherick challenged N on her recollections as to when the family had lived at various addresses and her recollection about...