| [1] | The appellant
appeals against his convictions on six counts of offending against his partner
at Hastings in the early hours of Sunday
21 October 2001.The indictment
contained six counts: two of rape, two of sodomy, one of assault with a weapon
and one of threatening
to kill.The grounds of appeal comprise allegations of
incompetence against the appellant’s former counsel.As formulated in
the
notice of appeal they comprised: |
| a) | accepting
instructions when he lacked sufficient time to prepare the
defence; |
| b) | failing to carry out alleged
specific instructions; and |
| c) | conducting the
case so inadequately that the appellant was obliged to take over its conduct by
delivering the closing address to the
jury
himself. |
| [2] | The principal complaint concerned
the alleged failure or refusal by trial counsel to raise by way of
cross-examination or research
issues relating to the complainant’s mental
health.It was submitted for the appellant that at the time the
complainant’s
allegations were made she was under continuing treatment for
problems arising from the trauma of a gang rape some 15 years previously
and
that approximately two weeks before the complaint she had been seeking
counselling and medication; that trial counsel should
have carefully explored
whether there had been some connection between the gang rape, the
complainant’s need for counselling
and the complaint so soon after the
apparent need for counselling and medication, but he neglected to do so; that
the time needed
for trial counsel to consider the mental health aspects and if
necessary the brief of expert witnesses was inadequate and he ought
not to have
accepted the trial brief; that these problems were accentuated by trial
counsel’s limited experience of such trials;
and that overall there was a
miscarriage of justice. |
| [3] | Following receipt
of trial counsel’s affidavit the complaints of inadequacy of time to
prepare and inadequacy of experience
were necessarily abandoned.In fairness to
trial counsel we summarise the facts and the reasons for our conclusion that the
complaints
against him were wholly without
foundation. |
| [4] | The appellant deposed that he
had supplied his original counsel with an account in writing of everything he
felt relevant including
concerns expressed about the complainant’s mental
state and his view that there was need to explore that question for the purposes
of trial.The trial date, originally set for Monday 20 May 2002, was allocated
at short notice of just over a week.Original counsel
was obliged to relinquish
his brief because of a clash of fixtures and arranged for a transfer of the
grant of legal aid to trial
counsel. |
| [5] | Trial counsel and original counsel met the
appellant at the Hawkes Bay Regional Prison.The appellant deposed that during
the meeting
it was said that trial counsel did not have approval to conduct
trials of such weight but that ad hoc approval had been or would
be given to his
defending this case because of the urgency with which it was being brought on.Trial counsel’s account by contrast
was that his level of experience and
the proposition that there was or was to be a one-off approval for his conduct
of the case were
never discussed at the meeting.Mr Quilliam elected not
to cross-examine trial counsel whose affidavit we accept as
unchallenged. |
| [6] | In fact trial counsel did
hold approval by the Hawkes Bay Legal Services Authority to conduct trials in
category three, which embraces
all cases up to but excluding those carrying a
maximum penalty of life imprisonment or preventive detention.The
Authority’s
usual policy is to classify sexual violation cases tried in
the District Court as not carrying a possible penalty of preventive
detention,
which is a sentence that could be imposed only by the High Court.Counsel discussed that question with the Authority which, after
discussion with
former counsel, was satisfied that preventive detention was not in prospect.Accordingly trial counsel was approved
to conduct the
trial. |
| [7] | He deposed that he has conducted
numerous trials in the past.Only two have been for sexual violation, one
resulting in a not guilty
verdict on the sexual violation charge and the other
in a hung jury and ultimately a not guilty verdict.He considered he had the
appropriate experience and would not otherwise have accepted the
assignment. |
| [8] | Following the proposal by
former counsel that he should agree to act for the appellant, trial counsel
perused the materials disclosed
by the Crown.He was particularly concerned
about the appellant’s video interview by the police which contained a
detailed repetition
of the complainant’s evidence that trial counsel felt
was prejudicial to the appellant.He therefore advised the Crown urgently
that
the defence would object to the admission of the video tape.The Crown’s
application to admit the evidence was heard on
13 May 2002 and the defence
objection was partially successful, significant portions of the interview being
ruled inadmissible. |
| [9] | On Friday 17 May 2002,
with the trial due to commence on the following Monday, trial counsel received a
brief of ESR evidence but
was told by the police that they would not be calling
that evidence.On the morning of the hearing however the Crown solicitor
advised
that the Crown had changed its position in relation to certain evidence
and the hearing was adjourned to commence on Tuesday 28
May. |
| [10] | The adjournment had nothing to do
with lack of preparation by trial counsel.He deposed to having, and taking,
the time required to
prepare evidence, in particular that relating to injuries
around the complainant’s
genitalia. |
| [11] | The transcript of evidence
satisfies us that trial counsel had a thorough grasp of the case and handled a
difficult brief with competence.We
reject the complaints of lack of experience
and lack of adequate preparation. |
| [12] | On what
emerged as the central point of the appeal - appellant’s instructions to
trial counsel, the appellant had asserted that
he instructed counsel to obtain
psychological or psychiatric expert evidence and to explore the
complainant’s mental health
history through hospital records.The
appellant’s affidavit and written submissions did not elucidate the
grounds on which such
instructions were
given. |
| [13] | Trial counsel deposed that he was
supplied by the appellant with written notes about cross-examination relating
inter alia to the
psychological condition of the complainant.They did not
extend to instructions to obtain medical evidence or to instruct a psychologist.
Counsel’s account was that when discussing the notes with the appellant he
indicated that cross-examination was a matter for
which counsel must accept
responsibility and that he did not consider cross-examination relating to the
complainant’s previous
history would be of help to his defence.Counsel’s expressed concern was two-fold.First, he considered that the
state of mind
of the accused during the incidents alleged by the complainant
would be the central issue in the case.Of these some, including putting
a
knife to her throat, were challenged only as to details.So admission of the
appellant’s knowledge of a previous rape of the
complainant and the fact
of her sensitivity to use of force, coupled with sexual intercourse, would be
severely detrimental to the
claim he was to advance in evidence, and did
advance, that he reasonably believed that she was consenting to the acts of
vaginal
and anal intercourse.An overlapping concern was that to raise such
issues would expose the accused to cross-examination about his
knowledge of the
prior rape and his knowledge of the unlikelihood that she would have consented
to sex closely associated with violence. |
| [14] | Trial counsel deposed that he discussed
these concerns with the appellant who accepted his advice and agreed that the
issues should
not be raised at trial.We have noted that trial counsel’s
account is unchallenged. |
| [15] | Since there is no
longer any question of counsel’s defiance of instructions, in order for
the appellant to succeed it would
have been necessary for him to establish that
counsel’s advice entailed the kind of radical mistake discussed in R v
Pointon [1985] 1 NZLR 109.But at the oral hearing the submission for such
a case proved unarguable.For the argument to succeed would have
required at a
minimum expert evidence that the complainant’s damning evidence of the
appellant’s brutality towards her
was the result of some psychological
reaction to her alleged prior ill treatment or to the medication she had been
prescribed that
would predispose her to give a false account against him.But
none was put before us. |
| [16] | In the absence of
any such material there could be no possible basis for us to conclude, as
required by s385(1)(c) of the Crimes Act
1961, that there has been a miscarriage
of justice.The appeal is accordingly dismissed.
|
