R v Bull CA143/04 [2004] NZCA 405 (8 November 2004)

Last Updated: 2 December 2018

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA143/04

THE QUEEN

v

RICHARD BULL

Hearing: 20 October 2004

Coram: McGrath J Potter J
Rodney Hansen J

Appearances: J Haigh QC and S Walker for Appellant P K Hamlin for Crown

Judgment: 8 November 2004

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1] The appellant was convicted by a jury in the High Court of sexual offending against three teen-aged boys. He was sentenced to 12 years imprisonment with a minimum period of six and a half years imprisonment. He appeals against all convictions and his sentence.

[2] We shall refer to the complainants in this judgment as A, B and C. Eight of the charges on which the appellant was convicted were of sexual violation of A; six

R V BULL CA CA143/04 [8 November 2004]

of them involved anal penetration. One of those offences was a representative charge. The appellant was also convicted on two counts of sexual violation by his oral sexual connection with A, and one of indecent assault of A while he was between 12 and 16 years of age. The offending against A was alleged to have taken place between June 2001 and June 2002.

[3] The appellant was also convicted on two counts of indecent assault of B and one count of indecent assault of C when they were respectively aged between 12 years and 16 years. All the offending against B and C was alleged to have taken place in August and September 1997.

[4] The principal ground of appeal is that the appellant was incompetently represented by his trial counsel, who failed to follow the appellant’s instructions concerning the conduct of the defence and was responsible for radical errors. Other grounds alleging procedural flaws in the trial are also advanced as grounds of appeal.

Background facts

[5] Each of the complainants came to know the appellant through attending his climbing gym in Hamilton, where he became friendly with the appellant. Each complainant was aged between 14 and 15 years when he first met the appellant who took him on rock climbing trips. The Crown case was that in this and other ways the appellant built up a friendship, and then moved to initiate sexual contact with each complainant. The Crown case was that the offending against B and C took place during August and September 1997. B gave evidence of an occasion when he and the appellant were away on a trip together with other boys including C, who slept in another tent. While they were in their tent the appellant began massaging B’s back. After a while he moved his hand down to take hold, briefly, of B’s genitals. He ceased his advances when the boy rolled away, moving over to the far side of the tent. B said in his evidence at the trial that he was shocked and did not want the intimate touching. He added that afterwards he may have had contact with the appellant at his gym, but not for long. Some months later B spoke to a friend about the incident.
[6] C gave evidence that on another overnight trip, when he was 15 years old, he was in the appellant’s tent with another boy. Following some drinking the appellant began massaging the back of the other boy and then that of C. The appellant reached down to C’s groin and put both hands on the boy’s genitals, moving them over the genital area. C yelled at the appellant and he stopped.

[7] C then went to sleep, with the appellant lying alongside him in the tent, between C and the other boy. C awoke in the middle of the night to find someone groping his genitals. The appellant was holding C’s penis in his hand over the sleeping bag and massaging it. The appellant stopped this assault after half a minute when C protested and pushed the appellant away.

[8] This alleged offending gave rise to convictions of the appellant for indecent assaults of B and C (when aged between twelve and sixteen years) under counts eleven, twelve and thirteen of the indictment.

[9] The more serious offending for which the appellant was convicted was alleged to have taken place against A during a period of twelve months commencing in June 2001. A came to the appellant’s gym for the first time late in 2000 when he was 13 years old. The appellant taught him to use the equipment and A was soon coming almost daily to the gym where he quickly learned to be a very competent climber. In his evidence A said that, after some months, the nature of his relationship with the appellant changed.

[10] One day in June 2001 the appellant had asked for his help in adjusting some equipment behind a climbing wall. After completing that task the appellant began to massage A in an apparently innocent way. A few days later the appellant closed the gym for the evening while A was still climbing a wall, and asked A to come upstairs with him. There the appellant started massaging A on his shoulders. A said that the appellant then pulled him down on to the ground, laid over him straddling his stomach, and began to massage his chest and arms. At the same time the appellant was rubbing his groin against the complainant’s lower abdominal region, at the top of his pubic hairline. A said that these actions were not wanted and he was shocked
by them, although he had not minded the initial massage. These actions were the subject of Count 1 and gave rise to one of the convictions for indecent assault.

[11] A was a competitor in a climbing competition at the gym in June or July 2001. After it had concluded, when the gym premises were closing, the appellant again asked A to come upstairs with him. He commented on A’s physique and asked him if he could take A’s tee-shirt off and massage him. A agreed to this. There is some dispute about what happened next but ultimately the appellant took off his trousers and asked A to massage him and to touch his genitals which A did. The appellant then took A’s head in his hand and forced A to engage in oral sex on the appellant for about ten to twenty minutes. Following this the appellant asked A to rub the appellant’s genitals again, which A did. The appellant was charged with sexual violation in respect of these actions and, in the alternative, with indecent assault. He was convicted on the sexual violation charge (Count 2).

[12] Similar incidents of oral sex followed on numerous occasions. After them the appellant often gave A drinks, candy bars and money. Count 4, charging the appellant with sexual violation, covered these continuing actions during the period from June 2001 to June 2002. It was a representative charge of which the appellant was also convicted.

[13] The fifth count arose from conduct when the appellant and A went camping with other boys at Whanganui Bay. On that occasion the appellant and A both slept overnight in the same tent, the two others sleeping in a separate tent. The appellant gave A beer and he drank five cans before going to sleep. The Crown alleged that the appellant then had anal sex with him. A said in his evidence that he did not want that to occur. In cross-examination A appeared to accept that he had been aware of what was happening and to some extent had assisted the appellant to penetrate him. He was however firm that it was not something he had wanted to do. The next day he said that he said “No” when the appellant asked him if he would do it again. These acts were the subject of the conviction for sexual violation on Count 5.

[14] A also alleged that the appellant had anal intercourse with him on several other occasions. He had only a limited recollection of some of them. Subsequent to
the Whanganui Bay incident A went to Auckland with the appellant for a climbing competition and they stayed in the same room in a flat occupied by the appellant’s friend. There the appellant massaged A’s shoulder, which was sore, and then followed that with anal sex. A’s evidence was that he had let the appellant do it and was silent. At the appellant’s request he had then masturbated him, and the appellant had then masturbated A. These actions gave rise to the sixth count of sexual violation.

[15] There was another similar incident in Auckland, in another house occupied by the same friend, when the appellant was managing a climbing gym there. After work the appellant again had anal sex with A and got him to engage in the same sexual conduct on him. This resulted in his conviction for sexual violation on count
7. During this period the appellant continued to give A money and other gifts.

[16] A also alleged there were sexual incidents between him and the appellant which took place at the appellant’s home at Hamilton. He was uncertain when some of these took place. He remembered one occasion when they were out driving together, and went to the appellant’s house to pick up some items. They had an argument and this had led to anal intercourse which A described as extremely painful, adding that he had repeatedly told the appellant to stop. The appellant would not do so. Following this the appellant gave the complainant climbing gear and bought him food. This incident resulted in the conviction for sexual violation on the eighth count.

[17] Finally the appellant gave A a ride home one day after he had visited a circus. They had stopped at the gym and anal intercourse occurred there in the storeroom. This conduct resulted in the conviction for sexual violation on count 9. The complainant said in evidence that intercourse had occurred on more than seven occasions; he could not remember the exact number.

Involvement of trial counsel

[18] The appellant first saw his trial counsel on 13 August 2002. In an affidavit that his counsel filed in this Court, in response to the appellant’s allegations against
him concerning his conduct of the appellant’s trial, counsel said that the appellant told him that A, a 14 year old whom he knew from visits to his gym, had alleged that the appellant had sexually assaulted him in Auckland. Counsel said that in the course of a relatively short consultation he told the appellant to await the outcome of any police investigation before taking any steps himself. The appellant had also sought advice on what he might do regarding statements made by a friend of C, who we shall refer to as S, alleging that Mr Bull had engaged in sexual misconduct with C.

[19] It later transpired that at this stage the appellant had already made an exculpatory statement to the police on his own initiative on 3 August, in effect a complaint concerning allegations that were being made against him. The police, however, initiated an inquiry into allegations that were made to them at about the same time by A and contacted the appellant’s counsel on 15 January 2003. The police said they wished to interview the appellant but on 21 January trial counsel indicated that the appellant would not be making a statement. The appellant was then arrested.

[20] The matter proceeded to a deposition hearing, following which the appellant was committed to the High Court for trial. He instructed his counsel that he wished to have the trial of the allegations by A conducted separately from those of the other two complainants, and an application for severance was made. On 7 August 2003 this application was refused by the High Court and that decision was upheld on appeal by this Court on 17 November 2003. On 27 November Mr Pyke wrote to the appellant telling him of this Court’s decision and that the chances of his acquittal on the allegations made by A had as a result been reduced.

[21] The appellant was concerned that a number of persons who might be witnesses at his trial should be contacted and interviewed. During 2003 and early 2004 his counsel engaged a private investigator to contact and interview the persons concerned, to have some distance between counsel and those possible witnesses. Some potential witnesses, on the appellant’s instructions, were interviewed twice, because the appellant was not happy with the outcome of the initial interviews. Trial counsel said he also arranged for interviews of character witnesses, speaking to some
candidates himself. In the end, the persons concerned were unsuitable, generally because they had not had meaningful contact with Mr Bull in recent years.

Preparation for trial

[22] The appellant’s trial commenced on 1 March 2004. On 20 February trial counsel had delivered a letter, of 19 pages closely typed, to Mr Bull reviewing what evidence should be called at the trial, the legal issues that would be dealt with prior to its commencement, the defence strategy generally including whether the appellant should give evidence and the approach that counsel should follow in conducting the defence. A large part of that letter reviews what those persons whom the appellant had suggested might give evidence supporting him would say, and gives counsel’s advice on whether they should be called. For reasons that we expand on later counsel did not consider it to be essential for the appellant to give evidence in order to have a realistic chance of being acquitted of the sexual violation counts that he faced. In essence counsel also took the view that the appellant would make a very poor witness indeed under cross-examination.

[23] Trial counsel decided to obtain firm written instructions prior to the trial on how it should be conducted. He considered it was necessary to decide before trial whether the appellant would give evidence. Counsel also considered that putting the appellant’s denials of the offending, in particular to the complainant A, would be inconsistent with a defence of the sexual violation charges on the basis that the Crown could not prove lack of A’s consent, or of the appellant’s reasonable belief of his consent, to the acts concerned. To this end the appellant’s written instructions were obtained on 26 February 2004. The instructions were that he did not wish to give evidence at the trial and that, having regard to that decision and the further decision that consent would be the main issue at the trial, the idea of calling any character evidence should be abandoned. These instructions were recorded in a separate document which was initialled by the appellant. It referred to the appellant’s acceptance of his counsel’s assessment that he would be likely to perform poorly as a witness, the appellant’s acknowledgement that he had been on a camping trip alone with A and on occasions had slept in Auckland on a bed with A and been in a
bedroom with him on their own. The appellant specifically acknowledged these matters would be unhelpful to his defence if they emerged and that he would have a better chance of successfully defending the case by focussing on questions of consent in relation to A. He also expressly recognised that he was not free to give evidence only in relation to complaints by the two young persons who had alleged he had indecently assaulted them, acknowledging that the potential benefit of his giving evidence in relation to those charges was outweighed by the potential harm to his defence on the more serious charges concerning the other complainant.

The trial

[24] The appellant’s trial in the High Court before a jury took place over four days. B and C gave evidence supporting their allegations of indecent assaults. The cross-examination of B by defence counsel in relation to his allegations was brief:

You said you didn’t go to sleep after this incident you have described and you could see (the appellant) was there in the tent with you throughout the night. Is that right...yes

And the touching you have described that was only a fleeting touch of your genital area....Not a fleeting touch it was a deliberate grab but when I tried to move away it was how you described it, yes.

...How do you mean fleeting.

Once you rolled away he desisted...yes. Momentary...due to me moving away, yes.

And was it a situation where prior to that touching you have described you weren’t expecting it...No I wasn’t.

You weren’t...No.

Your reaction was one of shock was it not...it was.

And (the appellant) never said anything to press the issue with you that night...How do you mean.

Encourage you...No.

[25] C gave his evidence after B. The cross-examination of C covered whether others were on the trip, in particular complainant B. C said that was possible, but he could not remember. Counsel also established that after the incidents C had gone back to the gym and more recently had taken out a fresh membership. The complainant agreed he had put the matter the subject of his complaint behind him and when approached by the police did not want to be involved. In neither case did counsel confront B or C by putting to them that their allegations of indecent assaults were false.
[26] According to trial counsel, when A gave evidence supporting his allegations of much more serious sexual offending against him by the appellant, he did so generally “without any hysterics or interruptions”. He did not break down in the witness box. Defence counsel’s cross-examination of A occupies over ten pages in the transcript of the trial. The cross-examination commenced with questions concerning the appellant’s support and training of A in his wish to become a climber, at a time when things were problematic for him at home and school. It established that the appellant’s support had extended to sponsorship of A and the provision by the appellant of free climbing gear for him. It was suggested A had only complained to the police when he knew that the financial support was ending, and even after doing so A had persevered in attempts to obtain free gear from the appellant.

[27] The line of cross-examination concerning the particular allegations of sexual violation was, first, that A had been happy to go on trips with the appellant in the knowledge that there would be sexual activity between them, that A knew that the appellant saw A as his boyfriend, and had agreed to be his friend, provided the appellant continued to be nice to him. As well counsel put to A that he had always assisted the appellant to engage in acts of intercourse with him. A had undressed himself and participated in the acts in various ways. Counsel suggested to A that he felt comfortable about what was happening. Counsel also suggested that A had exaggerated the number of occasions on which sexual intercourse had taken place, there being only three to five such acts.

[28] In this way, counsel sought to secure admissions from A of his co-operation in the most serious of the sexual acts that were the subject of charges, sufficient to be able to address the jury on the defence of consent or reasonable belief in consent. The nature of the responses he obtained enabled him to do that in relation to the sexual violation charges, although in the end the jury convicted the appellant on all charges faced, including the less serious charge of indecent assault where consent was not a defence.

Evidence concerning trial instructions

[29] The appellant filed an affidavit concerning his instructions to his counsel in respect of the trial. Following the appellant’s waiver of privilege, trial counsel filed an affidavit in reply. We now briefly summarise the main points that were made in these affidavits and during cross-examination of both deponents at the hearing of the appeal.

[30] The appellant said in his affidavit that he had agreed that his counsel should advance the consent defence, but not that it was to be the only defence at the trial. He had seen the consent defence as secondary to a denial of the offending, which could be the only defence in relation to charges concerning complainants B and C. The appellant said he was stunned that the complainants were not confronted with his denials in the course of cross-examination at the trial. He had become alarmed during the trial but had not been able to communicate his concerns to his counsel, who had insisted on keeping his distance from the appellant. This had prevented the appellant, he said, from giving further instructions during the course of the trial.

[31] In relation to his written instructions of 26 February, and counsel’s earlier letter to him, the appellant said he had accepted he had a better chance in his defence if his counsel focussed on questions of consent in relation to the more serious allegations of complainant A, but he always thought the denials of offending in relation to indecent assault charges, in particular with B and C, would be pressed. He had not been told otherwise.

[32] As well, the appellant said he had understood that witnesses would be called in his defence. He had been ready to give evidence himself (although accepting that his counsel advised that he should not do so). Members of his family had also been ready to give evidence and he was surprised they were not called.

[33] In his affidavit in reply trial counsel said that the defence of denial of offending was problematic for the appellant, particularly once the Court had decided that there would not be a separate trial of the charges against B and C. Despite
thorough investigation there were no reliable witnesses who could support the appellant’s theories, which included conspiracy among the boys who had been at the gym. For reasons given the appellant was likely to be a bad witness. He had made an earlier statement to the police in which he made damaging admissions which could be portrayed as a clumsy effort to deflect the police from investigation of any complaints. There was also the risk that allegations concerning a prior relationship between the appellant and another young climber at the gym might emerge in some way if he gave evidence. As well trial counsel was concerned at frailties in the appellant’s memory for details such as dates.

[34] Trial counsel said that it was agreed by the appellant in discussions prior to the trial that counsel should make consent to the sexual violation charges (the most serious that the appellant faced) the major trial issue with the aim of securing an acquittal on all those charges. It was not possible to run a defence of fabrication of the allegations of sexual activity simultaneously. The appellant would not give evidence because of the disadvantages of doing so and because a consent defence could be raised without his testimony, through cross-examination. It was agreed during the trial that the two witnesses who might have given evidence would not be required. As to the allegations by B and C, the appellant had said that he could live with being convicted of what they alleged if he could avoid conviction on the charges covering sexual violation of A.

[35] In his oral evidence at the hearing of the appeal the appellant told the Court that, soon after his trial counsel was first instructed, the appellant’s mother told counsel that the appellant had reading and writing difficulties at school, and that counsel would need to take things slowly when explaining them to the appellant. The appellant also told us that he had a disability in reading and writing and understanding documents.

[36] One point that emerged from the cross-examination by Crown counsel, Mr Hamlin, of the appellant was that he had not found trial counsel’s letters easy to understand. He described the letter of 20 February as confusing and contradictory and said that it did not mean anything to him. When asked if counsel had told him that the case was winnable by running consent as a defence, the appellant said “I
don’t even get the consent thing anyway.” When it was put to him that when he had initialled the note of his instructions he “knew what was going on” the appellant replied “not really that’s why I hired a lawyer”. He also said his counsel had not discussed his intended approach at the trial with him, adding that “everything was handed to me and zipped through and sign it”. The appellant also denied that he had been told that the focus of his defence would be on consensual activity. He accepted, however, that he had many discussions with counsel concerning the complaints of A and that he had also discussed with counsel those of B and C.

[37] Trial counsel said to Mr Hamlin that the appellant had not told him that he had difficulty in understanding the basis of the defence. He had also provided counsel with typed notes with comments on deposition statements. During cross- examination trial counsel accepted that he had been told by the appellant’s mother that the appellant needed sometimes to go over things, to have the opportunity to think about material and perhaps discuss it with family members. Counsel said he had gauged how the appellant was communicating with him from their personal contact and did not consider any disabilities he may have had were a significant impediment to his communication. He had however reduced more material to writing than normally he would do. Counsel came to be satisfied that the appellant knew what counsel was talking about and had been able to discuss matters logically, although sometimes wanting to depart from the topic (primarily to discuss his view that there had been a conspiracy among the boys and in particular between A and a third party).

[38] Counsel also said that he had discussed with the appellant many times that the best defence for him to pursue was consent, particularly so far as A’s complaints of sexual violation were concerned. He was satisfied that the appellant knew and understood his thinking on the issue.

[39] Early on counsel had concluded that the defence of denial was incompatible with that of consent. He subsequently decided there was little prospect of the jury being left with a reasonable doubt that there had been sexual contact, by the appellant simply denying it had occurred. On the other hand he saw room to create a reasonable doubt in relation to consent issues and advised the appellant “to go that
way”. He discussed the two possible defences as alternatives, and had advised the appellant that the denial defence could not be relied on. He recalled one occasion in which he had told the appellant over coffee that his best chance of acquittal was to defend the case based on issues of consent rather than trying to prove it had not happened. Trial counsel acknowledged to Mr Haigh QC that he had not gone so far as to say that, because he was focussing on consent, he would cast aside the appellant’s advice that he denied the offending, but trial counsel felt that was implicit. The appellant also knew he had decided not to give evidence and counsel had told him that would mean he was only left with consent issues at the trial. Counsel considered that the appellant understood that the decision that the appellant would not give evidence was the key decision in how he would defend the case. He did however acknowledge that his correspondence had not spelt out his approach in those terms.

[40] When asked about the length and terms of his letter of 20 February trial counsel said that the appellant would have read it in the context of a lot of discussions he had had with his counsel, and matters arising in the course of them of which he was aware. He would not have read the letter believing that he was still running a defence of denial, as that could not be successfully done unless he gave evidence. Counsel then added that the appellant may not have realised that his denials would not be put to the complainants. He accepted that aspect of the case was not covered with the appellant. After seeing the complainants give their evidence in the manner he had expected counsel decided not to put to any of the complainants that the sexual conduct alleged had not occurred. He considered it would be unhelpful to do that having regard to the decision taken to focus on questions of consent.

[41] Trial counsel said that he had concluded that none of the potential witnesses should be called because none of them were present at the appropriate time and they could not give evidence that the offending had never happened. Their potential evidence went more to issues of motive and perhaps consistency.

[42] The final decision not to call the two witnesses who were standing by was made with the agreement of the appellant. Counsel said that during the trial the
appellant had been quiet and withdrawn and looked to be under pressure but he had not indicated he was concerned at the failure to put his denials to the complainants.

The appellant’s argument on appeal

[43] The principal ground of the appeal is that the appellant’s trial counsel failed to comply with the appellant’s instructions in his conduct of the defence. According to the submissions of senior counsel for the appellant in this Court, Mr Haigh QC, the appellant’s instructions to trial counsel throughout had been a denial that there had been any sexual misconduct. Mr Haigh accepted that trial counsel had obtained instructions to pursue the consent defences to the charges of sexual violation, but said that was not a detraction from the denial of sexual offending. Mr Haigh pointed out that as consent was only a defence to the eight sexual violation charges the adoption of the consent defence, while abandoning that of denial, left the appellant without any defence at all to the four indecent assault charges on which he was convicted. That was contrary to his instructions.

[44] Mr Haigh argued that because of the advice given by counsel that he should not give evidence at the trial, nor call any other witnesses in his defence, there was no basis for defence counsel to address the jury in respect of the alleged indecent assaults on B and C. The defence was conducted in a manner that had left the jury no choice but to convict on those charges. The appellant had not given instructions that permitted counsel to ignore the appellant’s denial of offending.

[45] This basic point was also put in other ways. Mr Haigh argued that the flaws in the conduct of the defence amounted to a radical error by counsel, as the two defences were inconsistent. There were also associated criticisms of counsel advanced. Mr Haigh also said that a more vigorous consent defence was required in the circumstances if that of denial was to be abandoned. Counsel had also failed to communicate with the appellant to receive his instructions during the trial. We shall address these ancillary matters. As Mr Haigh however accepted, the principal issue comes down to whether by focussing on consent which was a defence only to the sexual violation charges, trial counsel departed from his instructions.

Legal principles

[46] There was no dispute between counsel as to the applicable legal principles when the conduct of a trial by defence counsel is advanced as the ground of appeal. There are two situations in which the ground of incompetence of counsel in the conduct of the trial may succeed on appeal. The first is where it is shown that trial counsel has failed to follow instructions. In R v S [1998] 3 NZLR 392 this Court said of this ground:

A counsel does not have the right to disregard instructions from his or her client. See R v McLoughlin [1985] 1 NZLR 106 at p107. If appropriate advice has been given to the client, counsel’s proper course is either to act on his or her instructions or to withdraw from the case. But the duty of counsel to follow a client’s instructions must necessarily depend upon the way in which those instructions are expressed and conveyed. See R v Lavery (Court of Appeal, Wellington, CA342/95, 14 February 1996) at p5. It must be clear that the instructions were not simply an expression of the client’s views on a 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 that he or she “wants” or “wishes” a particular witness to be called. See Byford v R (Court of Appeal, Wellington, CA74/93, 25 June 1993) at pp3-4. 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, CA396/91, 22 November 1991) at p9 et seq.

[47] Where defence counsel makes a radical mistake in the conduct of a criminal trial, that can also provide a ground for a successful appeal. In R v Teko CA360/03 15 October 2004 this Court said of that ground at [43] and [44]:

Before mistakes in the conduct of a person’s defence will give rise to a finding by an appellate court that there has been a miscarriage of justice, the nature and degree of counsel’s error must be ascertained. The appellant must have demonstrated that there has been a radical or fundamental mistake, not merely tactical decisions made that might have yielded better results for the appellant. Nor will a mere failure to present the defence in the best possible light of itself satisfy the test. The threshold is high. Where, however, the error is of an extent that could well have had a prejudicial effect on the outcome of a trial and there is a real risk of a miscarriage of justice this court will be required to treat the trial as unsatisfactory. These principles are well established and emerge from such decisions of this Court as R v Pointon [1984] NZCA 72; [1985] 1 NZLR 109, 114, CA; R v Horsfall [1981] 1 NZLR

116, 123 (CA); R v Quinn 1 [1991] 3 NZLR 146, 153; R v S [1998] 3

NZLR 393; and R v Jones CA426/00, 30 March 2001.

There are other decisions of this Court which provide helpful instances of the application of these principles. Two are of particular assistance in the present context concerning cross-examination. The first is R v Coster CA538/95 19 March 1996. In that case counsel’s main error was said to be failure to cross-examine on a matter that might have assisted the accused. Of importance was whether, if counsel did omit to deal with a matter, there was a reason which while not necessarily a full justification did provide an explanation that made the decision understandable. In making such an assessment the Court will take into account that decisions on cross- examination sometimes have to be made quickly and recognise that some decisions that appear strange in hindsight might readily be understandable in context. Because of this factor a wide margin of judgment must be accorded to counsel before a trial decision will be treated as giving rise to an error indicating incompetence of counsel.

Discussion

[48] The appellant asserts that, having instructed his counsel at the outset that he denied having offended, as the three complainants had alleged, he did not at any stage retract those instructions to defend all charges on that basis. While he accepted that he agreed that consent could be advanced as a defence to the sexual violation charges, the appellant maintained that this was to be in parallel with his denial of all allegations of sexual offending.

[49] Obviously the strategy that trial counsel developed and pursued at the trial was not in accordance with what the appellant maintains were his instructions. It was a strategy of some subtlety. Trial counsel had concluded that if the appellant’s denial of all offending was advanced as the defence at trial, it would probably be rejected, and the appellant convicted on most if not all charges including those of sexual violation, resulting in a lengthy sentence of imprisonment.

[50] The reasons for this conclusion were, first, that three male complainants of similar age were to give evidence at the same trial of sexual offending by the appellant against them in similar circumstances on different occasions, when the appellant had the opportunity to offend. Provided they gave the evidence that was anticipated the appellant would face a strong Crown case. The second reason was that to maintain a defence of denial, the appellant would have to give evidence himself, and face cross-examination. That counsel saw as problematic for reasons we have already traversed. The risk that the appellant would be a poor witness was
high. The third reason was that there were no witnesses available to set up an affirmative defence that would attack the credibility of the complainants, or set up on some other basis a reasonable doubt that the allegations were true.

[51] In these circumstances trial counsel saw far more merit in advancing a defence of consent to the eight charges the appellant faced of sexual violation of A and focussing on that defence at the trial. He believed that a tenable defence could be mounted to those charges based on the large number of incidents of sexual activity that had occurred which, it could be argued, was indicative of co-operation that negatived proof of consent or proof that the appellant did not reasonably believe that complainant A was consenting to the acts of sexual violation concerned. If the strategy were successful it would still leave the lesser charges of indecent assault of all three complainants to be addressed. Counsel would do that as best he could in the trial, but would treat the defence of the sexual violation counts as his priority.

[52] We take the view that it was open to a competent counsel to propose to the appellant (who plainly wished to defend the charges brought against him) that he should pursue this defence. It is clear that the defence of consent could not be pursued consistently with that of denial of all of the alleged sexual offending, which had been the basis of the appellant’s initial instructions. But counsel had identified serious difficulties in pursuing the denial defence and was clearly of the view it should not be advanced at the trial.

[53] As we have said trial counsel’s preferred defence was a subtle one and the central issue in the appeal is whether it was adequately communicated to the appellant and, if so, whether the appellant approved of the course it entailed to the extent that he agreed that the denial defence should not be pursued, or at least that the defence of consent should take priority wherever and to the extent that counsel considered that it was in conflict with the defence of denial. This question must be determined on the basis of the evidence before us in the appeal and our assessment of the credibility of the appellant and trial counsel both of whom were extensively cross-examined.
[54] Having heard both the appellant and trial counsel give evidence of the nature of the discussions between them that preceded counsel’s letter of 20 February and the formal instructions of 26 February 2004, we prefer the account of trial counsel. We are satisfied that he is the more reliable witness in describing the relevant events. The appellant’s evidence discounted the extent to which reasons for counsel’s views had been explained to him but he did accept that they had many discussions particularly concerning the complaints of A. He also said in evidence that he did not fully understand the consent defence and that he had hired a lawyer because he did not really understand what was going on. On the other hand, trial counsel’s evidence satisfied us that he had not only thought through the way the defence should be handled with care but he had been at pains to explain it orally to the appellant. The letter and written instructions were prepared in light of what they had discussed and agreed. Their content, the detail of counsel’s recollections of discussions and the open manner in which he gave his evidence satisfies us that they were written after very comprehensive discussions of the position between the two of them, which had resulted in the appellant’s acceptance of his counsel’s advice as to how his defence should proceed. The written instructions, read in this context, confirm the appellant’s agreement.

[55] Overall we are satisfied that trial counsel explained these matters in the course of discussions and the appellant understood that he had a stark choice between alternative defences. He could defend the allegations as originally intended, by giving evidence denying sexual misconduct. He would then face cross- examination in a situation which he appreciated would be one of considerable vulnerability for him. If he followed that course he would most likely be the only witness for the defence.

[56] The appellant also knew that there was another course which would focus on the most serious of the allegations against him made by complainant A. This course would not require him to give evidence. It would be pursued by his counsel through cross-examination and submissions to the jury. The appellant probably did not know much more about how the consent defence would be presented or the finer points of the law on which it was based. He knew it was in the hands of his counsel and
understood that of the two options open to him in defending the case this was the only sensible one.

[57] To the extent that he was not fully cognisant of matters of detail in presentation of the defence he was prepared to leave those matters to his counsel. Counsel had devised and explained the strategy to the appellant and the appellant obviously had full confidence in him up to the commencement of the trial. The appellant was content not to give evidence and thus with not himself telling the jury he had not engaged in the sexual activity that the complainants would describe.

[58] In these circumstances the appellant obviously was agreed that the consent defence was to have priority at the trial. As to how it was handled, he agreed to put himself in counsel’s hands. This is essentially what the very full statement of instructions that he initialled says. The appellant did not understand all the intricacies of the defence but that does not affect the fact that he had instructed his counsel to conduct his defence according to the strategy counsel had developed. It must follow that the submission that trial counsel failed to act in accordance with instructions fails.

[59] The appellant was also aware that the consent defence was not a complete one and that even if the strategy were successful he might well be convicted of one or more of the indecent assault charges. He accepted that risk. It is not immediately apparent to us why a more robust questioning of the complainants B, and particularly, C, concerning whether the indecent assaults took place, would have undermined the consent defence in respect of A’s main complaints. But this was a question of trial tactics which falls squarely within the margin of appreciation allowed to counsel’s judgment. The same can be said of the lack of cross- examination specifically directed to A’s allegations of less serious offending. There is certainly no radical error in the way cross-examination of any complainant was handled. It should be borne in mind that the appellant had told his counsel that he could “live with” convictions on charges related to complainants B and C provided he was successful in defending charges relating to A.
[60] Overall we do not accept that in the conduct of the defence it has been shown that trial counsel made any radical errors or performed his professional responsibilities in a very difficult case other than with competence and in accordance with instructions that he had carefully explained.

[61] Other matters raised by the appellant’s counsel included a submission that the trial judge may have made a comment during his summing up to the jury, which suggested that he had a view that the appellant was guilty. The submission was that if the comment had been made it may have unduly influenced jurors to return a guilty verdict. Two relatives of the appellant deposed that they heard the Judge say that it was the jurors’ task to deliver their verdict and the Judge’s to determine the appropriate sentence. Both the Crown prosecutor at the trial, and defence counsel, have deposed in reply that they could recall no such comment being made during or immediately after the summing up. Defence counsel confirmed that he would have immediately raised any such observation with the Judge. Mr Haigh did not cross- examine defence counsel on this point. Nor did he develop it in his extensive oral submissions, other than to indicate that he wished this Court to consider and decide the matter on the material that is before it.

[62] A comment of the kind referred to by the deponents during the course of the trial Judge’s summing up would be extraordinary. We have no doubt that it would be vividly recalled by the two counsel at the trial. The likely explanation, as trial defence counsel suggested, is that the deponents have confused the timing of events. If a comment along the lines the deponents have referred to was made by the Judge after the verdict was returned, then it would be both proper and of no significance. We find that the Judge did not make any such comment to the jury before they returned their verdicts and we reject this ground of appeal.

[63] The second procedural matter advanced on behalf of the appellant also concerned observations which were the subject of affidavits by members of the appellant’s family. Their tenor was that they had seen a juror outside the Court’s precincts, during the period of the jury’s deliberations, following the Judge’s summing up. If such an event occurred, it would be in breach of s370 of the Crimes Act 1961 which requires that an officer of the Court have charge of the jury, after its
retirement to consider their verdict, and that no other person be permitted to speak or communicate with the jury without leave of the Court.

[64] Affidavits from the Court taker and the Court crier have been filed in reply. Their effect is that the jury was under the crier’s supervision during the entire period of deliberations. The door to the jury room was also constantly in the sight of the Court taker who throughout was at her workstation facing the door. Both agree that no juror left the company of other jurors or the jury room during deliberations on their verdict.

[65] The jury retired at 3.55pm and delivered their verdicts at 4.30pm. The retirement was accordingly a very short one which provides strong circumstantial support for the account of the two officials.

[66] Again there was no request to cross-examine and no further submissions were made orally by Mr Haigh on these matters which counsel left for us to decide on the evidence before us. We are fully satisfied that there was no irregularity in relation to the supervision or conduct of jurors during deliberations and in particular that there were no improper communications by or with any juror. Accordingly this ground of appeal is also not made out.

Sentence appeal

[67] Following his conviction the appellant was sentenced by the trial judge, Laurenson J, to twelve years imprisonment including a minimum term of six and a half years imprisonment.

[68] On the sentence appeal Mr Haigh accepted that a term of 8 years imprisonment was the appropriate starting point. He submitted however that the final sentence imposed of twelve years imprisonment was a manifestly excessive one. Mr Haigh said that the Judge had wrongly treated a number of matters as aggravating factors, including the appellant’s failure to give evidence. Mr Haigh also argued that the case was not of such seriousness as to warrant a minimum term of imprisonment.
[69] Mr Hamlin, for the Crown, emphasised the number of the appellant’s victims, their vulnerability and the premeditation and manipulation involved in the offending especially against A. He argued that this put a term of twelve years imprisonment within the available range, and made the offending sufficiently serious to justify the minimum non-parole period imposed. He submitted that the sentence overall was not manifestly excessive.

[70] The nature of the appellant’s offending against A made this case a particularly serious one. It involved repeated acts of sexual abuse of the most serious kind. It included six acts of anal rape over a thirteen month period. The further abuse of the other complainants was separate offending and had to be taken into account in fixing an appropriate total term of imprisonment, once the Judge had decided to impose concurrent sentences. The offending overall showed that the appellant had developed a pattern of conduct which involved making use of the interest of young teenage boys in his gym climbing facilities to cultivate friendships that might lead to sexual activity. In this sense it was premeditated and planned criminal offending.

[71] Those features are appropriately treated as aggravating factors, warranting a significant increase from the starting point for the sentence. We are satisfied that it was open to the Judge to treat the features as aggravating ones to the extent that a twelve year term of imprisonment was required. Equally the case was clearly a very serious offending of its kind and one which required that the appellant not be eligible for release after the normal one third parole period. The minimum term of six and a half years imprisonment was justifiable in the circumstances.

[72] In all the circumstances, the appellant having denied all charges, there were no circumstances of significance in mitigation. The result overall is a stern sentence but one which was open to the Judge. We are satisfied it was not manifestly excessive.

[73] For these reasons the appeal against conviction and sentence is dismissed.

Solicitors:

Crown Solicitors, Auckland