R v Williams [2002] NZCA 407 (27 June 2002)

Last Updated: 27 November 2019

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 427/01

THE QUEEN

V

ANTHONY JAMES WILLIAMS

Hearing:	20 June 2002
Coram:	Keith J Panckhurst J Gendall J
Appearances:	G A King for Appellant
	D J Boldt for Crown
Judgment:	27 June 2002

JUDGMENT OF THE COURT DELIVERED BY PANCKHURST J

Introduction

[1] The appellant was found guilty in the District Court upon charges of unlawful sexual connection and indecent assault. He was sentenced to three and a half years imprisonment. The present appeal is against the convictions only, an appeal against sentence having been abandoned. The sentence appeal is accordingly dismissed.
[2] The grounds of appeal are a challenge to the conduct of the appellant’s trial counsel in relation to two matters. First that counsel failed to take instructions from the appellant during the course of the trial concerning whether a juror should be disqualified. Second, that counsel failed to interview and consider whether a material witness should be called for the defence, which constituted a radical error in terms of R v Pointon [1984] NZCA 72; [1985] 1 NZLR 109 (CA). It was argued that either point, or the two cumulatively, gave rise to a risk of a miscarriage of justice. Mr King informed the Court that the appellant maintained the other grounds of appeal included in his notice of appeal. They were not the subject of any development in oral argument.

Background

[3] The complainant was aged [redacted] and the mother of [redacted] children. At the relevant time she was employed as an [X] at [Y tertiary education provider] called [“course Z”]. Persons who successfully participated in [course Z] could obtain a certificate in [redacted].
[4] The appellant knew both the complainant and her partner and was a regular visitor to their home. At the relevant time he was aged 30 and a student. The appellant had considerable experience and expertise in relation to training people in the tradition and use of [W]. It was this interest which brought him into contact with the complainant’s partner and was a topic of mutual concern to the complainant and the appellant.
[5] Late in the evening of 9 December 2000 the appellant called at the complainant’s home. She was alone in the house with the children, since there was a temporary estrangement between the complainant and her partner. The appellant had been to a party nearby. He was welcomed into the house and the two talked for a period of one to two hours. The appellant indicated his intention to leave. The complainant as was her custom went to kiss the appellant good night on the cheek, but he kissed her on the lips. The complainant’s evidence was that she was embraced by the appellant, who proceeded to fondle her breasts, kiss them, and eventually slide his hand beneath her lower clothing so as to penetrate her vagina.
[6] When the complainant managed to break free she ordered the appellant to leave. He delayed momentarily and made the remark “when it comes down to it who will they believe, me or you”. Once the appellant left the house the complainant telephoned and complained to both her partner’s father and her mother. The matter was reported to the police.
[7] Both in the course of a video interview and at trial the appellant strongly disputed the complainant’s version of events. He maintained that as he was about to leave she kissed him passionately on the mouth, he rebuffed her approach and immediately walked out. Nothing more significant occurred.
[8] With reference to evidence given by the complainant’s partner that a short time after the incident the appellant had visited him, apologised, and said that if he could he would take his own life, the appellant said his actions were misunderstood. The apology was given because the partner’s mana was diminished on account of the incident (as even the appellant described it), while the reference to taking a life was figurative in nature and referred to the loss of kinship between the two men.
[9] The trial occupied two days. The Crown called the complainant, her partner, the two complaint witnesses, and the police officer who investigated the matter. The appellant was the sole witness for the defence. The case was left to the jury on the basis that the central issue was whether an indecent assault and a sexual violation occurred about which there was, of course, a direct conflict. After a quite lengthy retirement the jury returned verdicts of guilty on both counts.

The Juror Issue

[10] In anticipation of the hearing the appellant filed an affidavit concerning the allegations of failure by trial counsel to take instructions on a question of jury disqualification and to investigate the calling of a prospective defence witness. A waiver having been given, trial counsel (not Mr King) provided an affidavit in response. In addition the prosecutor in the District Court also swore an affidavit although restricted to the juror issue. Since the affidavits of the appellant and of trial counsel were in conflict we allowed cross-examination of the deponents. This extended to an affidavit provided by the appellant’s girlfriend who was both present at the trial and involved in certain meetings with trial counsel before and after the verdict.
[11] To appreciate the issue in relation to the juror it is necessary to mention a further factual element of the case. The appellant maintained that the complainant was possibly motivated to make a false allegation against him on account of a difference between them concerning her role as an [X] of [course Z]. It was common ground that after the complainant obtained funding for the course she approached the appellant concerning his participation in it as a tutor. He was not prepared to be involved. Indeed the appellant made no secret of the fact he considered it culturally inappropriate for a woman to be involved let alone in charge of a training programme of this kind.
[12] During the conversation which preceded the incident on 9 December 2000 the subject of [course Z] was discussed. Also, the complainant said that at one point she and the appellant went outside to enable him to show her how a navigational device was operated by the use of the stars. The complainant said that while so engaged the appellant had an arm around her and she entertained her first concern as to his intentions. However, the appellant denied this whole aspect of the complainant’s evidence.
[13] The trial commenced with the evidence of the complainant. In the course of the morning adjournment one of the jurors raised a concern about her continued involvement. The Judge saw counsel in chambers. In the result the juror was discharged in terms of s374 of the Crimes Act 1961. The trial Judge explained the development to the remaining jurors in this way:

The reason (the juror) is no longer there is it turns out there is a connection between the organisation her husband is Chief Executive of and where the complainant is working. She did not know the complainant, had never heard anything about her or the accused, but simply, because of the connection with the organisation with where the complainant works, the sensible thing is not to place somebody in a position where they have to make a judgment where it is effectively so close to home.

[14] Towards the end of the first day and during the evidence in chief of the complainant’s partner a further juror raised a concern. Again, the Judge saw counsel in chambers. Neither trial counsel nor the prosecutor can recall exactly the details of the juror’s concern. Trial counsel’s recollection was that the juror indicated through the court taker she recognised the witness as someone she had given a ride to the polytechnic on one occasion. Counsel’s affidavit continued to the effect that he did not personally consider the connection should disqualify the juror but, as was his practice, he wished to seek instructions from the appellant. Such was done. The appellant agreed with counsel’s assessment. Hence the juror remained.
[15] The affidavit of the prosecutor was to similar effect. She could not recall the detail of the connection other than that the juror recognised the witness on the basis of some prior contact. The witness’s name was not known to the juror which explained why the problem only came to light when the complainant’s partner was called to the witness box. The prosecutor also deposed that trial counsel sought and was given the opportunity to take instructions before the trial continued with the existing eleven jurors.
[16] The appellant’s affidavit was to quite different effect. He denied that trial counsel consulted him before the Judge was told there was no objection to the juror in question continuing to serve. Rather his recollection was that he first learnt of the issue the following day, the second day of the trial, after the Judge had summed up and shortly before the jury returned its verdict at about 9.50 pm. In a second affidavit the appellant changed that and deposed that trial counsel “came to me after the guilty verdict” concerning the problem with the second juror. Moreover, the appellant deposed that had he been given the opportunity he would have been adamantly opposed to the retention of the juror.
[17] The appellant’s girlfriend deposed in her affidavit that trial counsel told her a few days after the verdict that the juror met the witness (the complainant’s partner) on a course at the polytechnic and that counsel did not consult with the appellant during the trial concerning the matter “because of the shortage of time ...”.
[18] We find it unnecessary to dwell upon and discuss the conflict in the evidence concerning when trial counsel spoke to the appellant about the juror, whether this occurred at the time the problem surfaced or only much later, just before or after the verdict was given. Suffice it to say we much prefer the view that instructions were taken after the discussion in chambers and before the evidence of the complainant’s partner continued. We regard it as most significant that the affidavit of the prosecutor (which was not challenged) confirms this course, at least to the extent that trial counsel sought the opportunity to consult and spoke in private with the appellant. The prosecutor cannot of course depose to what was discussed. Nonetheless against this background it would be strange if instructions concerning the juror were not sought and given.
[19] In any event we are satisfied that there was no reason for the juror to be disqualified. Although both counsel have a limited recollection of what the connection was between the juror and the witness, it is apparent that in common with the Judge they saw the connection as too remote to warrant disqualification. All the evidence before us points to that conclusion. The test to be applied is whether a failure to discharge the juror would give rise to at least a reasonable apprehension on the part of a fair-minded observer that the juror would not discharge his or her task impartially : R v Pearson [1996] 3 NZLR 275 (CA) at 278. There is nothing to suggest this test was capable of being met in this instance.
[20] We should not leave this point without observing that there would have been little or no scope for the present difficulty to have arisen if the discussion concerning the juror had occurred in open court in the presence of the accused. As noted in Pearson at 279 – 80 where possible it is preferable for such issues to be heard in court, albeit in the absence of the jury and possibly the general public, with reporting of the matter prohibited. There are also, of course, instances where on account of the nature of the information from the juror in question the matter cannot be dealt with in open court, but this is not a case in that category.

The Witness Issue

[21] Here the complaint directed at trial counsel was of a failure to interview and, perhaps, to call a witness in support of the defence case. This aspect was also the subject of conflicting affidavit evidence. The appellant deposed that on a number of occasions he raised with counsel whether the witness, a respected kaumatua with particular knowledge in the tradition of [W], should be called at the trial. He said that counsel’s advice was to the effect that there was no need for the witness to be called as the case was one which came down to the complainant’s word against that of the appellant.
[22] The appellant’s partner deposed to one occasion when she visited trial counsel’s office with the appellant and heard the witness topic raised and the advice of counsel that no purpose was to be served by calling the witness. By contrast the affidavit of trial counsel stated that he had never heard of the prospective witness and that when he inquired about further witnesses “there were no others (the appellant) wished to call”.
[23] While cross-examination did little to resolve the basic conflict, it did serve to confirm that a firm instruction was not given concerning calling the witness. As Mr King responsibly acknowledged in submissions the evidence at best conveyed that it was the appellant’s wish for the witness to be called. There was no firm direction or instruction given about the matter.
[24] We consider that this issue is brought into perspective by short reference to the proposed evidence. This is indicated by a brief of evidence annexed to the appellant’s first affidavit. That brief confirmed that the witness knew the complainant and that she had visited him to discuss [W training]. He and the appellant, who would have been an “ideal person to help on the course”, were asked to participate in [course Z] as tutors. However, both men declined to do so because:

(They) had an objection to the way (the complainant) was attempting to introduce elements of [course Z] in the programme. [W training] is basically a male activity by tradition and she was proposing to teach females the course. For this reason I refused to help her and I understand that Tony Williams refused to assist her for the same reason. I do not know what happened between Tony Williams and (the complainant), but I can say the issue of content of (the) course was a source of much friction. I had the impression that she was disgruntled and frustrated because no person, who knew about these things, would help her on the issues of [course Z].”

Although we recognise that the evidence of a witness may be developed in greater detail at trial, it is still difficult to see that the prospective witness would have materially advanced the defence case.

[25] That the appellant was asked to assist in relation to [course Z] and refused to do so, and that he disapproved of the complainant coordinating such a course, were matters which were brought out in evidence before the jury. Even the complainant conceded as much, although her evidence also indicated that despite the disapproval of others the course was underway and that she enjoyed the assistance of two tutors each of whom was known to the appellant.
[26] It follows, we think, that put at its highest the prospective witness could give background evidence and in a situation where such background was not seriously in dispute. The real question was whether given that background it provided any reason for the complainant to fabricate a serious allegation of a sexual kind. Obviously the witness could not materially assist the jury as to that.
[27] In any event in the present context the muted nature of the alleged instruction to trial counsel is necessarily decisive against this ground of appeal. As noted earlier it is necessary for an appellant to show that the particular conduct of trial counsel constituted a radical error in the circumstances of the case : R v Pointon. And where the alleged error is a failure to call a witness:

It must be clear that the instructions were not simply an expression of the client’s views on the particular matter but were intended to be directions to be observed and implemented by counsel. They are then to be followed irrespective whether they would or might rebound to the client’s disadvantage. It is not enough, for example, for an accused to tell trial counsel he or she “wants” or “wishes” a particular witness to be called. See Byford v R (Court of Appeal, Wellington, CA 74/93, 25 June 1993) at pp 3 – 4. Moreover, once it has been established that counsel failed to follow the client’s instructions, the appellant must show that the failure led to a miscarriage of justice. See R v Reti (Court of Appeal, Wellington, CA 396/91, 22 November 1991) at p 9 et seq.

: R v S [1998] 3 NZLR 392 (CA) at 394.

[28] The challenge to the conduct of trial counsel must fail in this instance, both on account of the tentative nature of the alleged instruction and because the non-availability of the proposed evidence could not have occasioned a miscarriage of justice.

The other grounds

[29] We turn to the two other grounds included by the appellant in his notice of appeal.
[30] The first was that ten pages of the transcript of the video interview with the appellant were missing. The video was played to the jury with the Judge giving the standard direction that the video and not the transcript is to be evidence. The notes of evidence record the prosecutor as saying that she had asked for the tape to be stopped since her copy of the transcript went from p2 to p10. The transcripts were collected from the jury; and the Judge said that if the jury were not able to understand any of the video, a correct copy would be prepared and made available. That appears to have been the end of the matter. The case on appeal includes the full text of the transcript. No prejudice arising from the problem has been identified. This ground of appeal must be dismissed.
[31] The second ground was based on the appellant’s contention that he asked his trial counsel to get a court order to gain access to all of the video tapes of the course which the complainant ran. The apparent purpose would have been at best comparable to the background purpose for which the prospective witness, discussed earlier, would have been called. The possible value of the evidence can only be a matter of speculation and again there is no basis for saying that an instruction was given. This ground of appeal also fails.

Outcome

[32] For the above reasons the appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington