Z v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeStevens J
Judgment Date08 May 2013
Neutral Citation[2013] NZCA 118
Docket NumberCA589/2011
Date08 May 2013

[2013] NZCA 118

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Stevens, Allan and Clifford JJ

CA589/2011

Between
Z (CA589/2011)
Appellant
and
The Queen
Respondent
Counsel:

P G Mabey QC for Appellant

M J Lillico for Respondent

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.

At issue was whether Z had established that any aspect of G's conduct gave rise to a miscarriage of justice justifying intervention on appeal.

Held: The starting point in this case was Z's written acknowledgement that the advantages and disadvantages of giving evidence had been explained to him. Although Z had denied that this occurred, on the basis of the transcripts of the client interviews with G and other unchallenged material from the affidavits, G had given these explanations. The fact that no formal brief of evidence was prepared was not decisive. The fact that G might have formed a view early that it would be undesirable for Z to give evidence did not mean that the benefits and detriments of so doing were not considered and discussed. The issue remained a live and open one at least until an exchange of text messages in the course of which G sought to learn from Z what his final decision was. The fact that Z was supported throughout by his son helped overcome any medical, personality or other difficulties which might have existed in understanding the advice he was being given.

A further important question was whether the circumstances of the case were such that Z's failure to give evidence inevitably gave rise to his conviction ( R v Timmins). The conviction in this case was dependent on the jury's acceptance of the complainant's evidence. This was not a case where evidence from the defendant was required to make out a positive defence of, for example, self-defence, nor was Z running a lack of consent defence. From his meetings with Z and his son, G had managed to develop a coherent means of challenging the complainant's evidence (complainant had motive to lie as was seeking to get her mother to move out of Z's house and back with the complainant's stepfather). Despite the fact Z did not give evidence, the jury was required to consider the complainant's credibility and the evidence supportive of the defence theory. When this evidence was taken into account it could not be said that a conviction was inevitable.

G did not err in the manner in which, and extent to which, he cross-examined the complainant. This was an area for professional judgement of counsel, subject to any particular instructions of the client. There was no suggestion here that G was instructed to cross-examine the complainant in any particular way. During his cross-examination of the complainant G was able to draw out a credible narrative on which the defence could rely to support the defence theory of uniting the previous family unit. This evidence was obtained from a vulnerable witness with considerable skill and provided a clear foundation for important parts of the defence closing address.

It was true that G did not press the complainant on the specifics of her evidence, but to have done so might well have risked more damaging detail emerging. G by clear implication put to the complainant that what she had said in evidence involved a fabrication of her evidence. The way in which counsel addressed a jury was very much within counsel's prerogative ( Duncan v R).

While some of the comments used by G in his closing would probably have been best left unsaid, it was more important that the defence case was fairly raised and the defence theory developed to best advantage seen in context.

No miscarriage of justice established. Appeal dismissed.

JUDGMENT OF THE COURT
  • A The appeal is dismissed.

  • B Order prohibiting publication of name or identifying particulars of appellant.

REASONS OF THE COURT

(Given by Stevens J)

Introduction
1

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.

2

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.

3

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.

Background
4

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.

5

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

6

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

of the appellant's penis between the complainant's breasts) took place a number of times. For the purposes of sentencing, the Judge was satisfied that each act took place up to 10 times. 3
First ground — failure to give evidence
Background
7

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.

8

At the time of his arrest, the appellant made no statement to the police about the offending.

9

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

jail, or to get money from him, or whether it might be a means of the mother being able to buy into a hotel property.
10

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.

11

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.

12

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...

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    ...[21]–[23]. R v Pointon, above n 55, at 112; see also Manukau v R [2013] NZCA 605 at [3] referring to trial dynamics. Z (CA589/2011) v R [2013] NZCA 118 at [55]; S (CA361/2010) v R [2013] NZCA 179 at [61]; and Loffley v R, above n 39, at [53]. R v Farooqi [2013] EWCA Crim 1649, [2014] 1 Cr A......

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