THE QUEEN v GRANT ALFRED HARRIS [2001] NZCA 30 (22 February 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca409/00

THE QUEEN

V

GRANT ALFRED HARRIS

Coram:	Blanchard J Tipping J McGrath J
Judgment: (On the papers)	22 February 2001

judgment of the court DELIVERED BY TIPPING j

[1] The appellant was convicted of indecent assault following a jury trial in the Christchurch District Court and sentenced to eight months imprisonment.He now appeals against his conviction.
[2] The appellant applied for legal aid in respect of this appeal.The Registrar declined the application after the necessary consultation under s15 of the Legal Services Act 1991. The appeal has been determined on the basis of written submissions received from the appellant.
[3] At the time of the alleged offending the appellant lived in a flat next to a property owned by the complainant's aunt.The complainant, then aged ten, regularly visited her aunt during the week after school.On the day in question the complainant visited her aunt after school, got changed out of her school uniform into shorts and a t-shirt and went outside.The appellant saw the complainant over the fence and engaged her in conversation. He then went back inside his flat and the complainant climbed one of her aunt's peach trees. A couple of minutes later the appellant appeared under the peach trees on another neighbour's section.He again spoke to the complainant who eventually went through the fence to the neighbour's section.The appellant made a comment about scratches on the complainant's legs.It was then that the appellant lifted up her t-shirt and touched the complainant's genital area. The appellant's version of events was that he was looking at the marks on the complainant's thighs and had touched her lower buttocks in a non-sexual way.
[4] A jury at the appellant's first trial was unable to reach a verdict but he was convicted of indecent assault following a second trial.The appellant submits that the jury's verdict was against the weight of the evidence, that his trial counsel was incompetent and that witnesses who would have aided his case were not called to give evidence at his trial.
[5] As to the submission that the verdict was against the weight of the evidence, the main issue for the jury at the appellant's trial was one of credibility.There was no issue as to identity.The appellant admitted touching the complainant on her buttocks, the complainant gave a different account and was cross-examined.It was for the jury to decide whose evidence they would accept and by their verdict they accepted that of the complainant. It cannot be said that the verdict was not open to them on the complainant's evidence, which clearly established an indecent assault.This ground of appeal fails.
[6] The appellant submits that his trial counsel was incompetent.In particular the appellant is concerned that his counsel failed to emphasise the fact that the complainant did not give evidence as to the tattoos on the appellant's arms.Given that the identity of the appellant was not in issue at the trial, evidence as to any distinguishing features was irrelevant.The appellant conceded talking to the complainant and touching her.The only issue was where he had touched her.Evidence as to the appellant's tattoos had no bearing whatsoever on this issue.This ground of appeal also fails.
[7] Finally the appellant submits that two women at his address at the time of the offending should have been called to give evidence at his trial.It is said that they would have seen what occurred and could have given evidence consistent with the appellant's version of events.These witnesses were available to give evidence at trial and this evidence cannot therefore be considered as fresh evidence.To the extent that it is argued that the failure to call the witnesses was the result of the incompetence of trial counsel we are not satisfied that any foundation has been laid to suggest that the failure to call these witnesses constituted anything like radical mistake.It can be satisfactorily explained as an acceptable judgment call by trial counsel, particularly in the face of evidence from the complainant's aunt that the two witnesses concerned did not arrive at the appellant's property until after the offending had taken place.
[8] For the reasons outlined the Court is satisfied that no miscarriage of justice has occurred and accordingly the appeal is dismissed.