THE QUEEN v JASON BLAIR WARD [1999] NZCA 127 (28 July 1999)

IN THE court of appeal of new zealand

ca 125/99

THE QUEEN

V

JASON BLAIR WARD

Hearing:	27 July 1999
Coram:	Tipping J Doogue J Goddard J
Appearances:	G D Trainor for the Appellant K B F Hastie for the Crown
Judgment:	28 July 1999

judgment of the court delivered by GODDARD J

[1] The appellant was convicted by a jury of assault with intent to commit sexual violation and sentenced to three years imprisonment.He was acquitted on a further charge of sexual violation by digital penetration.

[2] He now appeals against his conviction on two grounds:the first ground alleges failure on the part of trial counsel in the conduct of the trial in two respects; the second alleges that the jury should have been directed that it was open for them to find the appellant guilty of an included lesser offence, namely, male assaults female.

[3] The appellant has waived privilege and trial counsel has sworn and filed an affidavit recording the history of instructions from him.His instructions are also verified in an affidavit sworn by junior counsel.The appellant has also sworn an affidavit setting out his recollection and perception of matters.

The Facts

[4] The complainant, who is a sex worker, was approached by the appellant in his motor vehicle at approximately 2.30am on 24 May 1998. After making enquiries of the complainant, the appellant agreed to pay $80 for her services, which he suggested should be performed at his home.During the journey, ostensibly to his home, the appellant and the complainant smoked a cannabis cigarette, which the complainant had rolled using papers and cannabis material supplied by the appellant.After driving for about 10-15 minutes the appellant drew up in a cul-de-sac not far from Brighton in a locality unfamiliar to the complainant.The appellant then indicated a house nearby in which he said his partner lived.He said that it was his fantasy was to have sex in his car outside his partner's house while she was inside.The complainant then enquired about payment and was told the money was in the glove box.She looked in the glove box but found no money.She then enquired further and the appellant told her to look again in the glove box.As she was looking through the glove box the appellant activated the central locking system of the car and turned up the volume on the stereo.He then punched the complainant in the head more than once with a closed fist, connecting with her eye - punched her on the nose and then struck a blow to the back of her head as she tried to unlock the passenger door to escape.

[5] The complainant, finding that she could not escape from the car, began screaming and attacking the appellant in self-defence, scratching at his face and trying to poke his eyes.The appellant then became enraged and, on the complainant's evidence, tried to jump on her.She put her legs up to protect herself and ended up on the floor-well of the passenger's seat, with her left shoulder against the floor, her head squashed under the headboard and her legs up by the gear stick.Whilst the complainant was in this position, the appellant got both hands around her neck and started pressing his thumbs into her throat.The complainant felt herself choking and became terrified that she would die.She managed to prise the appellant's thumbs off her neck with her fingers and held onto them hard, bending them right back.Before she managed to do that she said that the appellant tried to penetrate her with his finger through her clothing, using a great deal of force.It is in respect of that allegation that he was acquitted.

[6] After the complainant forcibly removed the appellant's hands from her throat and bent his thumbs hard backwards, she said he submitted a "wee bit" and told her that if she had sex with him he would let her up off the car floor.She agreed in order to buy some time and clambered past him into the driver's seat, letting go of his thumbs.By then the appellant was in the passenger's seat.Once in the driver's seat the complainant "went for the door" and tried to unlock it.However, the appellant put his arm around the back of the seat and placed his hand over the locking button.A further struggle ensued, with the complainant managing to get the door unlocked and partially opened.She started screaming "rape" and "help" as loudly as she could.The appellant then tried to put her in a headlock and endeavoured to pull her back into the car.She continued to scream and struggle her way out of the car, at the same time trying to wrestle the key out of the ignition to prevent the appellant from escaping. The appellant put his hand over her mouth to stop her screaming and at the same time started pushing her out of the car. She bit his hand as hard as she could and continued to scream for help.

[7] A couple who lived in the neighbourhood appeared on the scene and offered assistance to the complainant, who was hysterical by this time.The appellant told the couple that the complainant had taken his car keys and had attacked him. The woman retrieved the complainant's handbag from the appellant's car at her request.The man stayed by the appellant's car whilst the complainant and the woman went into the house to telephone the Police.When the Police arrived a formal complaint was made.

[8] The injuries sustained by the complainant were clearly visible at the time and more so in photographs taken the next day.She sustained bruising to her right eye and above her left eye; marks around her neck and shoulder blades; a cut to the inside of her upper lip; and an abrasion to the left side of her nose which bled profusely at the time.

The Appellant's Statement to the Police

[9] Two Police officers arrived at the scene:one spoke with the complainant and the other took charge of the appellant and examined his car.The officer found a small tin containing cannabis in the back of the car.About an hour later the same officer spoke with the appellant at the Police station and advised him of his rights.The appellant did not take the opportunity to instruct counsel at that point and refused to make a video statement.However, he answered a number of questions asked by the officer which were recorded in notebook form.Essentially, the appellant denied that the cannabis found in the tin in the car was his, although he admitted having smoked a joint with the complainant.He claimed that he had met the complainant in a bar the night before and had been to night-clubs with her that evening.He said that she had attacked him and scratched him first and opined that it was because she was jealous of other women with whom he had spoken at the night-club that evening. He admitted punching the complainant but said it was only in self-defence.He admitted that he had thought he would have sex with the complainant before the night was over but denied that he was to pay for it or that he knew she was a sex worker.

The History of the Appellant's Instructions to Trial Counsel

[10] In a comprehensive affidavit, trial counsel traversed the history of the instructions received from the appellant.Initial instructions were taken on the morning following the appellant's arrest, whilst he was still in custody. Discussions at that time were brief.

[11] Following the taking of depositions in September 1998, the appellant raised a number of issues with counsel.These included an assertion that the appellant had not told the Police that he first met the complainant in a bar and bought her a drink:rather, that he had told the Police he had met her in a café.Further, that the fight with the complainant in the car began because she had tried to take $200 belonging to him.

[12] Trial counsel recorded these instructions in a letter of report to the appellant, dated 21 September 1998.He concluded the letter by advising as follows:

You will be aware there is no such reference to any of this in your statements to any of the Police.

The writer notes, having read through our first notes when we saw you at Addington Prison, there is no reference to this.

For this reason we would like you to commit to writing your instructions as to what happened on this particular evening so there can be no misunderstanding as between the two of us.We would request that this be available no later than the next calling of the matter on 9^th of October.

[13] As a result, the appellant prepared a statement in writing, in which he said that he had earlier met the complainant in a café in the city and had later seen her standing on the side of the road at about 2.30am.He said that he offered her a lift to her home and on the way she had offered him a cannabis cigarette.He said that she had rolled the cannabis cigarette and they had smoked it together whilst he drove in response to her directions.He said that eventually they came to a cul-de-sac where the complainant told him to pull over and then pointed out the house in which she lived.He said that he switched the car engine off and she rolled another cannabis cigarette, which they smoked together.He said he then noticed that his glove box was open and that $200 was missing from it.He asked the complainant what had happened to his money and at the same time hit the central locking system.A physical altercation then took place, during which the complainant grabbed at his face and he punched her twice and wrestled her around a bit.He remained in the driver's seat throughout and was in a lot of pain because he had undergone a knee reconstruction three weeks earlier.During the altercation he remembered the volume control on his car radio being knocked.He reiterated what he had earlier told the Police, that he had no idea at the time that the complainant was a prostitute and no reason to suspect that she was.He refuted the allegation that he had hit the complainant in order to have sex with her.

[14] These handwritten instructions were then typed up and the appellant signed them.

[15] On 12 October 1998 trial counsel wrote to the appellant's orthopaedic surgeon, making enquiries on his behalf.The orthopaedic surgeon replied, confirming that he had surgically removed metal plates from the appellant's left knee on 6 May 1998 and had reviewed the operation on 13 May 1998.As at that date, he said, the appellant was able to walk without crutches, his wounds had all healed and he had a range of movement of the knee from 0-75% flexion and was progressing well.The orthopaedic surgeon concluded:

Therefore, based on my assessment on 13.5.1998 and knowledge of the rehabilitation course following this surgery, in my opinion Jason Ward would indeed have been able to complete the act of sexual intercourse on 24.5.1998.

[16] Following receipt of this advice, trial counsel wrote to the appellant on

2 November 1998 detailing "some hurdles that will need to be dealt with when this matter goes to trial..." and posing a number of questions and issues, including the conflicts in the account given by the appellant to the Police with his current instructions to counsel and, in particular, why the appellant had made no mention to the Police of the alleged theft of his money by the complainant as causing the physical altercation between them.Reference was also made to the difficulty of raising self-defence in relation to the assault on the basis of unjustified and unreasonable use of force.

[17] The appellant then instructed counsel that his notebook statement at the Police station had been taken despite requests by him for legal advice before making any statement.On the basis of that instruction, trial counsel filed an application pursuant to s.344A Crimes Act 1961 ("s.344A") seeking to have the notebook statement ruled inadmissible at trial.The s.344A application was given a hearing date immediately prior to trial on 22 February 1999.

[18] On 18 February 1999, the appellant attended at trial counsel's office to advise that all his instructions to date, including those relating to the s.344A application, had been "lies".Trial counsel then asked the appellant to confirm that the brief of evidence originally prepared on his instructions, and which he had signed, was untrue.The appellant confirmed the brief to be untrue and also his instruction relating to the s.344A application.A new brief of evidence was then prepared on the appellant's instructions.The purpose of this new brief of evidence, according to the appellant's affidavit, was:

... to correct the lies that I had made in my statement to the Police and to introduce evidence regarding my physical condition, which would have made it difficult for me to carry out the acts alleged by the complainant to have taken place in the front part of my car.I accept that an assault by me took place and do not deny hitting the complainant.I accept that I should not have hit the complainant at all.What I do deny is the intent to commit sexual violation.When this incident occurred I did not help myself by lying to the Police when questioned in their interview, I lied about the cannabis which was mine.The reason I lied about the cannabis was I had another two ounces in the boot of my car.I thought that if I told the Police about the cannabis they would have searched my car and found the two ounces but more importantly I was concerned that the Police would have then searched my father's house where I was residing and where I had more drugs and charged my father with possession. I also lied about knowing that the complainant was a sex worker and the lies just continued to grow to cover up the original lies.This was mainly due to me not wanting my family and friends knowing that I had picked up a sex worker to pay for oral sex.This was my first time and I was very ashamed of my actions.

[19] On 19 February 1999 trial counsel met with the appellant again.At this meeting counsel "expressed real concerns" about the appellant giving evidence at trial because of the conflicting accounts he had given to date, particularly to the Police at the time of arrest.These concerns were committed to writing together with advice that counsel had, nevertheless, been instructed to proceed.

[20] Trial counsel's concerns rested, inter alia, on the appellant attempting to justify his earlier lack of veracity as due to his having had cannabis in his car.The appellant's advice was that he had come over from the West Coast to sell the two or three ounces of cannabis he said were in the boot of his car at the time.In response to this disclosure, trial counsel cautioned the appellant that if he were to give such evidence, either in chief or under cross-examination, he ran the real risk of being charged with possession of cannabis for supply.Despite this advice, however, the appellant's view was that he would give evidence at trial and this was also recorded in writing.

[21] Trial counsel deposed that he felt particularly conscious of his earlier recommendation that the appellant should give evidence at trial.But that his advice in this regard had now changed to a more neutral stance due to the conflicting nature of the appellant's current instructions and the damage that it could do to the appellant's credibility at trial - together with the risk of the appellant incriminating himself in relation to cannabis offending.

[22] Prior to trial, the charge of sexual violation by digital penetration was added to the original charge of assault with intent to commit sexual violation. The complainant had not made any allegation in relation to digital penetration at the time she made her statement to the Police and consequently the appellant had not been asked about it during his notebook interview.Trial counsel's assessment of this belated count was that it was "somewhat weaker than the evidence ... relating to the assault with intent to commit sexual violation" and may therefore be difficult for the Crown to prove.He advised the appellant accordingly.

[23] On the morning of trial, counsel met with the appellant in the presence of junior counsel.At this meeting trial counsel required the appellant to acknowledge in writing his advice concerning the giving of evidence about possession of cannabis for sale.This written acknowledgement, which is set out below, records the appellant's claim that he had two ounces of cannabis in the boot of his car for the purpose of sale.It is noteworthy that this cannabis was somehow overlooked by the Police when the car was searched:

22.2.999.35am

Jason Ward advises:

If you tell the Court that you had 2 oz's of marijuana in the boot - say it on oath - that is evidence against you of having cannabis for sale or some other charge.Real possibility of going to prison.

Signed: J B Ward

[24] By this stage the appellant was apparently less sure that he wanted to give evidence and had moved from his adamant position of 18 February 1999.The pre-trial interview concluded with counsel advising the appellant that, at the end of the day, it would be for him to make the final decision about giving evidence and that such decision did not need to be made until the Crown case had concluded.

[25] Trial counsel met with the appellant again at the morning adjournment and at the luncheon adjournment to discuss the question of giving evidence.Trial counsel deposes that the appellant continued to question whether he would give evidence and was wanting advice about the matter.Counsel advised him that he needed to take into account a number of factors, including the fact that he would expose himself as having lied to the Police initially, that his ostensible reason for lying would introduce evidence of serious cannabis offending and that both factors would impact upon his credibility.Counsel further advised that, in the absence of the appellant giving evidence, the defence would simply rely on the Crown's ability to prove the charges beyond reasonable doubt, and the more serious charge of sexual violation did not have a strong evidential basis.Trial counsel is firm that his advice to the appellant never included advice that there was no evidence of intention to commit sexual violation.

[26] Both counsel met again with the appellant in the afternoon to advise him further.In relation to this meeting trial counsel deposes:

When I saw the [Appellant] that afternoon I was extremely conscious that I did not want to make the decision for the [Appellant] as to whether he should give evidence or not.

I went over the strength and weaknesses of the Crown case against the accused on the first and second counts.

On the first count I was of the opinion that the evidence against him was strong on the assault and the sole issue related to whether there was any evidence of intention to commit sexual violation.In all the circumstances I was of the opinion, that there may be sufficient evidence against him although that would be a matter for the jury.I was of the opinion that on the second count there was an argument for the jury to find that there was insufficient evidence to convict the Appellant on that count.

I emphasised to the Appellant I was prepared to put him in the witness box if he would instruct me to do so and to have his evidence led as per the brief that he had signed.

I did not tell the Appellant that he should not give evidence.Nor did I tell the Appellant that he should give evidence.I did not want to be seen to be making the decision for the Appellant, but conversely I wanted to ensure that the Appellant made an informed decision taking into account the various factors that needed to be taken into account.Junior Counsel Ms Gilson was with me when this discussion took place.

I received instructions not to call any evidence on his behalf in particular, the Appellant.This I had recorded in writing and executed by the Appellant, which he did willingly.

The Defence at Trial

[27] As it transpired the appellant decided not to give evidence at trial.The nub of his defence was put to the complainant and to the other Crown witnesses in cross-examination and was as set out in his final signed brief of evidence. It was put, as it had to be, on the basis that he would give evidence at trial because no firm decision was taken about that until the conclusion of the Crown's case.

[28] The nub of the appellant's defence was that the complainant had stolen his money and then attacked him and that he had retaliated in self-defence.He had eventually opened the car door and let her out and had then waited for the Police to arrive so that he could tell his side of the story.

First Ground of Appeal - Failure of Trial Counsel

[29] The appellant alleges failure on the part of trial counsel in the conduct of the trial in two respects:first, alleged failure to adequately or correctly advise the appellant as to whether he should give evidence at trial; and secondly, an alleged failure by trial counsel to call medical evidence to support the appellant's contention that he was, at the time, physically unable to act as alleged in the confined spaces of a motor car.

[30] Both of these allegations can be dealt with quite shortly.

[31] Central to the appellant's contention that trial counsel failed to properly advise him in relation to giving evidence at trial, is his assertion that trial counsel told him that the necessary intent to prove count 1 had not been established by the Crown.As noted, however, that assertion was firmly denied on oath by trial counsel.

[32] Further, trial counsel's advice on the issue of whether the appellant should give evidence must be viewed in the context of the wider ambit of his advice and in the context of the number of competing factors which required to be weighed.The situation demanded a careful balancing act and was made more difficult by the appellant's own prevarications.At the end of the day, however, the decision as to whether he would give evidence was properly left to the appellant, all relevant advice having been assiduously given him by counsel.

[33] This is, therefore, a completely different case to that of R v Hendry (CA101/99), cited in argument.We are satisfied that no error was committed by trial counsel and that, at the end of the day, the decision was made by the appellant on a properly informed basis.

[34] The second criticism under this head related to an alleged failure to call medical evidence.This ground of appeal largely evaporated during the course of argument; it being clear from the orthopaedic surgeon's advice that, by 24 May 1998, the appellant was mobile with good flexion in his left knee and capable of having sexual intercourse.Contrary to the appellant's contention in his final brief (that his physical condition would have made it difficult for him to carry out the acts alleged to have taken place in the front part of the car) there is clear contrary evidence establishing that he had moved from the driver's seat into the passenger's seat.This came from the man who arrived on the scene with his wife in response to the complainant's screams and remained by the appellant's car until the Police arrived.This witness said:

... I realised someone else was in the car.I didn't see where that person was positioned in the car.[The complainant] went inside with my wife and I spoke to the driver of the car.He seemed to come across, he wasn't in the driver's seat, he seemed to come from the passengers side or somewhere.When she got out he moved across.When I was talking to him he was seated then in the drivers seat.

[35] This was confirmed by the appellant himself in his notebook statement to the Police made the morning after the event.He said:

I was pushing her and she was on top of me.I pushed and ended up in the passenger seat.She got out of the car by the drivers door and started yelling rape.

[36] The appellant's attempt to resile from this statement in his final brief of evidence would have been difficult to sustain under cross-examination, in the face of the other evidence and his own original statement.

[37] In summary, the advice from the orthopaedic surgeon coupled with the evidence given at trial and the appellant's original statement to the Police could only lead to the conclusion that he was perfectly capable of moving from the driver's seat into the passenger's seat on 24 May 1998 and perfectly capable of having sexual intercourse on that date or at least oral sex.There being no other medical evidence before the Court upon which to base any other conclusion, no failure on the part of trial counsel, as alleged, has been established.

Second Ground of Appeal - Inconsistent Verdicts

[38] The second ground of appeal is that the jury should have been directed by the trial Judge that, in relation to count 1, it was open to them to find the appellant guilty of an included lesser offence of male assaults female.The verdict of guilty on that charge is said to be inconsistent with the verdict of acquittal on the count of digital penetration.

[39] As Mr Trainor correctly conceded, it is usual practice for the Crown to seek a direction for the jury to be directed on an included lesser offence. That did not happen in this case.The Crown was entitled to seek a verdict on the charge as laid and a verdict of guilty was open on the basis of the evidence adduced.It would have been open for trial counsel to seek such a direction but that was not done.In any case the decision to so direct was for the trial Judge to make and on the basis of the evidence the trial Judge would inevitably have declined such an application.

[40] We are satisfied this ground of argument lacks any substance.The context of the assault alleged and the background of evidence established an approach by the appellant to a sex worker for paid sex.The evidence of the Police officers and of the complainant was unequivocal as to the fact that she was clearly soliciting at the time she was picked up by the appellant.He has conceded that he knew she was a sex worker and that they discussed paid sex in his final brief of evidence.The appellant has admitted the assault.The complainant's injuries were consistent with the use of excessive force and consistent with attempted choking.These factors taken together give rise to a strong inference of assault with intent to commit sexual violation.Even if the appellant had given evidence at trial, the difficulty that would inevitably have arisen over his credibility would have militated against the reasonable possibility of doubt.

[41] In contrast to the evidence adduced in support of the charge of assault with intent to commit sexual violation, the evidence relating to the charge of digital penetration was less compelling.Therefore the verdicts cannot be seen inconsistent and that was conceded by Mr Trainor.

[42] This ground of appeal must fail also.

Judgment

[43] The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington, for the Crown

Trainor McLean, Christchurch, for the Appellant