Z v R
| Jurisdiction | New Zealand |
| Judge | Stevens J |
| Judgment Date | 08 May 2013 |
| Neutral Citation | [2013] NZCA 118 |
| Docket Number | CA589/2011 |
| Court | Court of Appeal |
| Date | 08 May 2013 |
[2013] NZCA 118
Stevens, Allan and Clifford JJ
CA589/2011
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeal against conviction following jury trial on representative charges of sexual violation by rape, sexual violation by unlawful sexual connection, and indecent assault — mother of 19 year old complainant was in relationship with appellant at the time — complainant had mild intellectual disabilities — grounds of appeal related to alleged misconduct on part of appellant's trial counsel — argued counsel advised that evidence should not be given by appellant in circumstances where that advice was clearly wrong, failed properly to put the defence to complainant in cross-examination, and delivered an inadequate closing address — whether any aspect of G's conduct gave rise to miscarriage of justice justifying intervention on appeal.
P G Mabey QC for Appellant
M J Lillico for Respondent
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A The appeal is dismissed.
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B Order prohibiting publication of name or identifying particulars of appellant.
(Given by Stevens J)
Following trial before Judge Marshall and a jury the appellant, Z, was convicted of sexual violation by rape (representative), sexual violation by unlawful sexual connection (representative), and indecent assault (representative). The appellant was acquitted of two further charges of sexual violation by unlawful sexual connection, also framed as representative charges.
This is an appeal against conviction. 1 The three grounds of appeal relate to alleged misconduct on the part of the appellant's trial counsel, Mr Gibson. Specifically, it is argued that Mr Gibson advised that evidence should not be given by the appellant in circumstances where that advice was clearly wrong, failed properly to put the defence to the complainant in cross-examination, and delivered an inadequate closing address.
For the reasons set out below the appeal must be dismissed. The appellant has not established that any aspect of Mr Gibson's conduct gave rise to a miscarriage of justice justifying intervention on appeal.
The complainant was aged 19 at the time of the offending. She has a mild intellectual disability which has led to her having an impaired knowledge of sexual matters and an impaired ability to foresee the consequences of decisions about sexual conduct. In 2008, the complainant's mother entered into a relationship with the appellant. The mother moved into the appellant's home and was later joined by the complainant. The complainant resided with the appellant from September 2008 to early February 2009.
At trial the Crown argued that the offending took place during the periods of each day when the complainant's mother was away from the house. While there was some dispute as to the period over which the offending took place, Judge Marshall accepted that the most likely timeframe was between two to three weeks. 2
The complainant said that the rapes occurred on between 10 to 20 occasions, and that the unlawful sexual connection (oral sex) and the indecent assaults (rubbing
The appellant met with his trial counsel, Mr Gibson, several times prior to trial. 4 He was usually accompanied at these meetings by his son, X. Unbeknown to Mr Gibson, X recorded these conversations without Mr Gibson's consent. Part at least of the transcripts are now before the Court. 5 It seems clear that the full record of what took place between Mr Gibson and the appellant was either not recorded or not transcribed. Either way, there remain issues as to the accuracy and reliability of the transcripts. Because of the approach we take to the determination of the first ground of appeal, however, we do not need to reach any final views on these issues of reliability. Nor do we comment on any other issues which might have been raised given the clandestine recording that occurred — save to say that we do not condone it.
At the time of his arrest, the appellant made no statement to the police about the offending.
In terms of his instructions to Mr Gibson about the offending the appellant denied that any sexual contact took place. There is no dispute he told Mr Gibson:
No, there wasn't even sex, I was simply, I was simply, simply set up. Okay. The position, there was not even sex, nothing.
The appellant claimed that the complainant had motivations to lie. At a conference involving Mr Gibson, the appellant and his son on 16 June 2011 Mr Gibson sought to explore why it was that the appellant said that the complainant had motivations to lie. Possibilities included the fact that the mother was trying to put the appellant in
During several meetings Mr Gibson, the appellant and the son discussed whether or not the appellant should give evidence at the trial. In his affidavits filed on appeal the appellant has deposed that he understood that he was not giving evidence and that that was on Mr Gibson's advice. He said that he trusted Mr Gibson's judgment that he should not give evidence. He added:
I put my trust in Mr Gibson and his judgment that I should not give evidence. It was his idea but I came to accept it was the right idea.
On 23 June 2011 the appellant considered, read and annotated a two page typed document confirming what Mr Gibson had advised him. At paragraph 5 of the document was the following statement:
The advantages and disadvantages of my giving evidence have been explained to me. I am presently not in good health but I accept that Doctors have assessed me as being fit to stand trial. This application has previously been brought and determined. I instruct my Counsel that I do not wish to give evidence.
There is a handwritten arrow from the word “not” in the second line. It points to some words in the appellant's handwriting as follows:
I also am not in good health at all, but welcome that in front of Honourable Judge prove my innocence … Mr Gibson please always remember what I told you … I am not guilty.
The trial commenced on 27 June 2011. After the second day of the trial, and before the appellant was called upon to make his election, Mr Gibson sought to obtain further instructions from the appellant on the question of whether the appellant would give evidence. There was a text message exchange between Mr Gibson and the appellant's son: direct communication was not possible because the appellant was not present at his bail address.
Mr Mabey QC for the appellant submits that Mr Gibson erred in advising that the appellant should not give evidence and in failing to outline the advantages and disadvantages of giving evidence. Mr Mabey submits that Mr Gibson had an obligation to explore more fully defence issues, including the question of giving evidence, with the appellant. He submits that, instead, Mr Gibson formed an early view against the appellant giving evidence and remained implacably opposed to his giving evidence from that point. This is supported by the fact that no formal brief of evidence was prepared by Mr Gibson, nor were any detailed notes taken from which a brief might have been developed.
Mr Mabey accepts that the appellant signed the file note referred to at [11] and [12] above. However, he adds that according to the appellant there were many things in that document that the appellant did not understand. The appellant considers that there are a number of matters about which he could have spoken in evidence which would have been of benefit to the jury.
In support of his argument that the appellant was incorrectly advised, Mr Mabey points to the following statements made by Mr Gibson from the transcript of the meeting on 24 May 2011:
| MG | well you see the difficulty is you know I, I'm looking ahead here the whole time and I'm thinking, I'm standing here representing [Z] and I know I can't call him as a client |
| [X] | you can't |
| MG | well I probably can't call him to give evidence on his own behalf because he doesn't understand the system |
| [Z] | oh if you, if it's presented to me in a written form and I read it 3 or 4 times I come to it |
| MG | yeah well you see, you can't give evidence like that |
| [X] | no |
| MG | so I'm thinking to myself and I'm just looking at it from a personal, an advocates point of view, that that the whole case is going to turn on the cross examination of the women in sowing the seed that that there is a, you know |
| [X] | an alteria motive |
| MG | alteria motive and and theres another agenda operating down the seams of these complaints, and I'm thinking to myself, where do you get that evidence from? You know, I'm I'm thinking what witness I would call in order to sow that seed and I don't know where it comes from and I'm thinking well, [X] would present well in court articulate and very presentable but you you tell me you've been in Australia most of the time that this was going on |
| [X] | when this happened I was in Australia |
On the topic of what was discussed about the appellant giving evidence, Mr Mabey referred us to the following passage from the transcript of the meeting on 2 June 2011:
| MG | … you know, but, that might look, you know, you'd appreciate [X] and [Z] that, that might look very remote to a jury |
| [X] | mm |
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