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THE QUEEN v STEVEN MALCOLM HILLS [2002] NZCA 228 (11 November 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca157/02

THE QUEEN

V

STEVEN MALCOLM HILLS

Hearing:

23 October 2002

Coram:

Tipping J

Williams J

Baragwanath J

Appearances:

W C Pyke for Appellant

B J Horsley for Crown

Judgment:

11 November 2002

judgment of the court DELIVERED BY TIPPING j

Introduction

[1] The appellant, Mr Hills, was found guilty by a jury in the District Court at Hamilton on a single count of indecent assault.He was convicted and sentenced to nine months imprisonment.He appeals against his conviction on grounds relating to the conduct of his trial counsel.Mr Pyke submits on his behalf that trial counsel failed to follow Mr Hills' instructions when presenting the grounds for an application to adjourn the trial, which in the event was unsuccessful.The second limb of the appeal is that trial counsel committed a radical error in the advice which he gave Mr Hills concerning the calling of character evidence.Two character witnesses who were available to give evidence for the defence were not called on trial counsel's advice.On the appeal the Court heard evidence from Mr Hills, who was cross-examined on two affidavits which he had sworn in support of his case, and from trial counsel who was similarly cross-examined on his affidavit.We will describe the background to the case only to the extent necessary to put the appeal issues in context.

[2] Mr Hills operates his own wallpapering business.He was working at the eight year old complainant's house.The Crown alleged that he made improper suggestions and advances to her, culminating in his touching her in the genital area through her clothing.The offence is said to have occurred on 25 September 2001.Mr Hills was first spoken to by the police on 28 September 2001 on which day he saw trial counsel for the first time. On 12 October 2001 Mr Hills was interviewed on video by the police. Trial counsel was not present.Depositions were taken on 1 February 2002.There is a major dispute between Mr Hills and trial counsel concerning the frequency, length and details of their meetings and discussions between the video interview and the depositions.In this respect we found Mr Hills' evidence the more convincing, both generally and because trial counsel was unable to produce any contemporary records to verify his version of events.We therefore accept Mr Hills' evidence on this aspect of the case which relates to the first ground of appeal.

[3] A notation on the information demonstrates that on 1 February 2002 Mr Hills was remanded on bail to 21 March 2002 for call over on that day.The indictment filed in the District Court does not clearly demonstrate, as it should, on what date it was presented.That must have occurred on or before Friday 1 March 2002.The indictment has a note that on that day Mr Hills was remanded by Judge Spear to 8 March 2002, that date "to be reviewed".No appearances of counsel are noted, although trial counsel and counsel for the Crown clearly must have been present, as trial counsel himself accepted.The indictment notes there was no appearance of the accused Mr Hills.It is also noted that video evidence and closed circuit television were ordered "by consent".It is common ground that Mr Hills was not consulted about those matters, trial counsel explaining that he saw them as routine.On Friday 8 March 2002 the indictment shows Mr Hills as having been remanded on continued bail to 12 March 2002 for trial.The record further shows that on 11 March 2002 Judge Spear declined an application for an adjournment and the trial proceeded on the following day with a verdict of guilty returned on the second day of trial, ie. Wednesday 13 March 2002.

[4] We now examine this sequence of events from Mr Hills' perspective, accepting as we do the general tenor of his evidence on these matters. Following depositions he was expecting the next step to be the call over on 21 March.He had actually made an arrangement to review the case with trial counsel the day before.We do not need expressly to rule on any issue concerning the legality of bringing forward, without Mr Hills' agreement, the date to which he had been remanded on bail.Indeed Mr Hills' agreement seems never to have been sought, let alone given.No-one seems to have addressed the issue at any time.The laudable aim of bringing trials forward if circumstances permit must not be allowed to overshadow the rights of accused persons.

[5] Mr Hills first heard of the bringing forward of his case from the police officer in charge during the evening of Thursday 7 March.Mr Hills rang trial counsel early on Friday 8 March at which point the question of an adjournment arose.We accept that trial counsel gave Mr Hills the impression that an adjournment would be obtained without difficulty because there had not been enough time to prepare.Matters were left on that basis with Mr Hills confidently expecting an adjournment would be granted.He thought there was no need to alter his work schedules.Over the weekend Mr Hills was informed by trial counsel that the Judge was "being difficult" and he needed details of Mr Hills' work commitments to support a further request for an adjournment which he was going to make on the Monday. Mr Hills faxed the details to trial counsel and heard from him at 3pm on the Monday that the application had been refused and the trial was going ahead at 10am the following morning.He then had to re-arrange his work commitments and get himself ready for trial in that short space of time.He understandably described himself as very stressed by all this extra pressure on top of the stress normally associated with what, at the age of 47, was his first encounter with the criminal law since he was 19.

First ground of appeal

[6] Mr Hills' evidence was that when he spoke to trial counsel on Friday 8 March about the trial being due to proceed on Tuesday 12 March, it was agreed that trial counsel would seek an adjournment on the basis that the case was not ready for trial.We accept that this is what was agreed.It is consistent with Mr Hills' stance throughout that he did not consider he and trial counsel had ever sat down in a clear and uninterrupted way and fully discussed the case.We think it probable that Mr Hills' work commitments were mentioned between him and trial counsel on Friday 8 March but the primary thrust of the adjournment application was to be the lack of preparedness for the case.We infer that Judge M J Green, who dealt with the matter on Friday 8 March, was not impressed by the suggestion the case was not ready and it was to this reaction that trial counsel was referring when he said the Judge was being difficult and requested further material to support the application in the form of Mr Hills' work commitments.There is no record of any formal application for adjournment having been made on Friday 8 March, or if such an application was made, of the Judge's decision to decline it.It seems probable therefore that no such formal application was made on the Friday and that when Judge Spear ruled against an adjournment on the Monday that was the one and only formal application which trial counsel made.

[7] Judge Spear's ruling was appropriately recorded.It is clear that the only ground raised was Mr Hills' work commitments.The Judge made no reference to any contention the case was not otherwise ready for trial from Mr Hills' point of view.We infer therefore that this dimension cannot have been raised by trial counsel before Judge Spear on the Monday.We do not accept that the only ground for adjournment which Mr Hills wished trial counsel to advance was his work commitments.That seems highly unlikely in view of his consistent concern at his preparedness for trial.Indeed after his conviction "insufficient time to prepare case" was one of Mr Hills' points of concern as noted by trial counsel.

[8] We consider that either trial counsel overlooked the lack of preparedness point on the Monday before Judge Spear, or he thought it would not be persuasive, or perhaps that it would not reflect very well on himself.In any event we are driven to conclude that trial counsel did not carry out his instructions to raise the lack of preparedness issue on the sole occasion when a formal application for adjournment was being considered by the Court.We are of the view that if this additional dimension had been raised there was a reasonable prospect that the application might have succeeded.In the light of the fact that Mr Hills had been remanded to 21 March, still almost two weeks hence, and he was obviously not consenting to face trial any earlier, it could well have been argued that Mr Hills was entitled to an adjournment, having made the arrangements to ensure due preparation for the trial, as well as to carry on his work, on that basis.Although not specifically relied on for the purposes of the appeal, this point cannot be ignored when the overall justice of the case is being assessed.

[9] In response to these matters Mr Horsley for the Crown advanced the argument that Mr Hills had not suffered any ultimate prejudice from the lack of an adjournment.Mr Hills himself accepted in evidence that he could not point to any specific prejudice or difficulty in answering questions either in chief or when under cross-examination.It was also submitted that trial counsel appeared to have conducted the trial itself more than adequately. There is force in the Crown's arguments in these respects.Substantively it may well be that trial counsel's failure to follow his instructions may not have led to any specific prejudice.Not unnaturally, Mr Hills feels let down and from his perspective it is understandable that he should continue to harbour thoughts that he was prejudiced.The various dimensions of the case which we have so far identified do not strike us as giving the appearance that justice has been done to Mr Hills.Even so, had the adjournment point stood alone, it may have been a case for applying the proviso to s385(1) of the Crimes Act 1961.There is, however, the second ground of appeal to which we now turn.

Second ground of appeal

[10] There is no doubt Mr Hills wished two character witnesses to be called. Trial counsel advised against that course on the basis that by putting his character in issue Mr Hills would be liable to cross-examination on his own previous convictions.Mr Horsley properly accepted that advice was wrong.Mr Hills' previous convictions were completely unrelated to the charge of indecent assault and, furthermore, they were very old.In 1972 when aged 17 Mr Hills was fined $15.00 for discharging a firearm in a public place.A little later that year he was fined $25.00 for obstructing the police, and in 1974 at the age of 19 he was find $160.00 and disqualified for nine months on charges of driving at a dangerous speed and in a dangerous manner.It is difficult to see how trial counsel could have thought the Judge would exercise his discretion under s5(4)(b) of the Evidence Act 1908 to let in these unrelated and antique convictions if Mr Hills, at the age of 47, called two character witnesses when facing a charge of indecent assault:see R v Anderson [2000] 1 NZLR 667 (CA) at 675 ff.We can only characterise the erroneous advice as a radical error.

[11] Again the question is, as Mr Horsley submitted, whether Mr Hills suffered any significant prejudice as a result of the character evidence not being called.Mr Horsley argued that evidence of general good character on a charge such as indecent assault is seldom, if ever, likely to make any difference.That proposition may well find general support (see R v Ahmed CA331/98 3 March 1999 at page 5) but it is difficult in a particular case to be sure what effect such evidence might have had on the jury.In the present case the success of the charge against Mr Hills depended almost entirely on credibility issues and specifically onwhat the jury made of the evidence of the complainant and Mr Hills, bearing in mind the onus and standard of proof.Counsel's radical error must be regarded as having led to a miscarriage of justice.Justice miscarries when witnesses an accused person wants called are not called, not for perceived tactical or other sufficient reasons, but because of a fundamental error of law by counsel.

[12] The question can only be, as Mr Horsley properly recognised, whether in terms of the proviso to s385(1) a substantial miscarriage of justice has occurred; in other words whether the accused has been prejudiced by the miscarriage of justice.There will be prejudice in proviso terms unless this Court can be sure that had the miscarriage not occurred (here had the character witnesses been called) the jury would nevertheless still undoubtedly have convicted:see R v McI [1998] 1 NZLR 696, 712 (CA).Despite Mr Horsley's persuasive submissions we find ourselves unable to be sure in this case that the jury would undoubtedly have convicted had the character witnesses been called.We reach that conclusion by a narrow margin but when we add both grounds together we find ourselves, by an appreciable margin, unable to be sure that had the adjournment been granted and the character witnesses been called a jury would still undoubtedly have convicted.

Conclusion

[13] It follows that the appeal must be and is hereby allowed.The conviction is quashed.Mr Hills has already served his sentence.In those circumstances, as Mr Horsley accepted, and we agree, it is not appropriate or necessary to order a retrial.

Solicitors

Crown Law Office, Wellington


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