COOK v R [2005] NZCA 125 (26 May 2005)

Court of Appeal of New Zealand

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COOK v R [2005] NZCA 125 (26 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA500/04

THE QUEEN



v



CHRISTOPHER KARL COOK

Hearing: 23 May 2005

Court: Anderson P, Williams and Salmon JJ

Counsel: J F Mather for Appellant
M F Laracy for Crown

Judgment: 26 May 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Salmon J)

[1]

The appellant pleaded guilty at a late stage of his trial before District Court Judge McAuslan and a jury, on one charge of wounding with intent to cause grievous bodily harm. He was sentenced to five years imprisonment. He appeals against conviction and sentence. His mother-in-law – the mother of the complainant – was a co-accused at the trial.

The facts

[2]	On 16 November 2002 there was a gathering at the home of Mr and Mrs Wilson. Amongst those present were Mrs Wilson’s daughter, the complainant in the proceedings, and her husband, the appellant Mr Cook. There were also some friends present. The group had been drinking for some time when an argument broke out between Mrs Wilson and her daughter which developed into a scuffle. The two were separated by Mr Wilson and Mr Cook.
[3]	The Crown evidence was that Mr Cook smashed a bottle over the complainant’s head bringing her to the ground. He then grabbed her by the hair, dragged her over to her car and administered a prolonged beating. Part of that beating took place inside the car when he punched her on the head numerous times. The evidence included a description of him bashing her against the side of the car and slamming the car door against her head. When the Police arrived he was standing over her. He tried to escape but was caught and eventually handcuffed. He was arrested and later that night made a statement. In that statement he acknowledged that the substantial amount of blood over him was probably his wife’s blood, and he acknowledged punching her about three times. He denied any other form of assault. He denied breaking a bottle on her head or kicking her. He said that the blood had probably got on him when he picked her up and carried her over to the car. He said he intervened when she was fighting with her mother.
[4]	The appellant’s original counsel withdrew from the case in December 2003. For reasons unexplained, but acknowledged to be through no fault of the appellant, new counsel was not assigned by the Legal Services Agency until the morning of 1 March 2004, the day the trial was set to commence. Counsel assigned was Ms Sapolu. Judge McAuslan adjourned the commencement of the trial to 2.15 p.m. the following day, but made it clear that she wished the trial to proceed at that time. Ms Sapolu spent one and a half hours with the appellant and then obtained and read the court file. She had a second meeting with the appellant the following day which also lasted an hour and a half. In total she spent nine and a half hours preparing for the case which is very close to the ten hour maximum which Legal Services normally allocate for a case of this nature.
[5]	It seems that Ms Sapolu was not aware of and therefore did not watch the video interview of the appellant. Nor was she aware of the instructions that the appellant had given to his previous counsel, although she did ring him to inquire whether there was anything not on the court file that she should be aware of. Ms Sapolu’s evidence was that the appellant’s instructions were that his wife was injured at a tinnie house where she had gone to make a purchase. She said that the appellant mentioned hitting her with a tea towel on the bottom on three occasions about six hours before the party, and she thinks that he also admitted hitting or kicking her once when he was trying to get her into the car during the party.
[6]	In his affidavit the appellant says that his instructions were that his wife was assaulted by criminal associates of his outside her mother’s address and that when his wife returned to the party there was an argument about him failing to protect her. In the course of the argument he hit his wife to protect himself. Both this explanation and that which counsel says he gave differ from the explanation he gave to his former counsel which was that the complainant attacked him and then her mother; he stepped in to break up the brawl between his wife and her mother; she started fighting him; he got her out to the car and sat her in the car; she lashed out with her foot and he punched her once after that; she then hit her head on the pillar of the car. He acknowledged punching her twice more and at that point she came to her senses.
[7]	The explanation given to previous counsel is consistent to a degree with the statement given to the Police, at least in so far as he acknowledges punching his wife three times. The explanation which Ms Sapolu says was given and the version which the appellant maintains he gave to her are both quite different in their reference to the injuries having been caused by third parties.
[8]	The first witness called when the trial commenced was the complainant. Her evidence was radically different from the initial complaint she had made. She gave a version of events consistent with the affidavit evidence of the appellant in this appeal. She went even further and said that she had not been struck by her husband at all. The second witness was the Police officer who took the statement of the appellant. The video interview was played at that stage.
[9]	After evidence from the Police officer who interviewed Mrs Wilson, the co-accused at the trial, the jury heard from five neighbours. Four of them were sitting in a position where they had a good view of what was happening. They gave a graphic description of the beating which they said was given by the appellant to his wife. Their evidence provides the basis for the Crown position earlier outlined.
[10]	At a point when there was only one Crown witness remaining to be called the appellant asked to be rearraigned and pleaded guilty to the charge against him. The trial continued in respect of the complainant’s mother and she was ultimately found guilty by the jury.

Appeal against conviction

[11]	The grounds of the appeal as refined at trial were: 1. That there was insufficient time for competent counsel to properly prepare for the trial. 2. That if there was sufficient time, then assigned counsel did not act competently and, in particular: (i) failed to obtain and watch a copy of the video interview prior to the trial commencing. (ii) failed to follow instructions, including failing to cross-examine the complainant. (iii) so mishandled the trial that the appellant had no alternative but to plead guilty.
[12]	Ms Sapolu was called and cross-examined on her affidavit. She said in her affidavit that she considered that she had adequate time to prepare the defence. In cross-examination she said that with the wisdom of hindsight she wished she had had more time. She pointed out, however, that she brought in a junior so that there were two pairs of ears and two minds to consider the instructions. She said that the principal issue as she saw it was identity and that she had to attack the reliability of the eye witnesses. When asked what more she could have done with more time, she said that she was surprised by the appellant’s wife’s evidence. No doubt this surprised the prosecution too, but it seems clear that Ms Sapolu was given no instructions by the appellant as to the nature of the evidence that would be given by his wife. She said that because the evidence was favourable to the appellant, she did not ask any questions. She acknowledged that when the videotape was shown in Court it created difficulties for her. She mentioned in particular a reference to previous assaults on his wife. It turns out that that information was contained in the statement of the co-accused and she recalls the Judge raising the issue. She said she submitted to the trial Judge that the evidence prejudiced the appellant and she asked for a mistrial which was not granted. We have no details of this aspect of the trial and it was not a matter raised by the appellant so we take it no further except to say that such a statement would normally be the subject of a direction by the Judge that the content of a statement made by one accused could not be used against another.
[13]	Ms Sapolu denied suggesting to the appellant that he should plead guilty. She said that the appellant was very concerned about his mother in law. She said that he told him that if he wished to give evidence on behalf of his mother he could do it either by giving evidence in his own defence or pleading guilty and giving evidence in his mother in law’s trial, but that would be a matter for counsel for the mother in law to consider. Ms Sapolu said that the appellant was a very knowledgeable man and knew the system well and did not wish to give evidence on his own behalf. Counsel had earlier seen the transcript of his mother in law’s videotaped interview and appreciated the difficulty of reconciling the instructions given to her by the appellant with what his co-accused said in her statement. She said she continued to take instructions from the appellant during the course of the trial.
[14]	For the sake of completeness we mention that there was also an affidavit filed by Ms Elaine Ward who was Ms Sapolu’s junior. She was not cross-examined. She was present when the appellant indicated that he would plead guilty. She recalls the appellant saying that he knew the system and knew how to slow things down. She says he was anxious for his mother in law. She recalled him saying that he would plead guilty.
[15]	In his submissions to us Mr Mather maintained his contention that there was not enough time for preparation and that this affected the conduct of the trial. We do not accept that submission. This was a simple case. Counsel was in a position to devote the whole of the time available before the commencement of the trial to preparation and we are satisfied that for competent counsel that time was sufficient. Mr Mather submitted that counsel should not have gone ahead without looking at the video and getting instructions in relation to it, particularly in relation to the admission of striking three blows. We agree with that submission, but we are satisfied that no miscarriage of justice resulted from that failure. Mr Mather maintained that had counsel been aware of that evidence it would have been appropriate to have cross-examined the complainant in relation to it. We do not accept that submission. It is clear from the photographs taken of the complainant and from the description of the Police and medical witnesses that her face was in a terrible mess at the end of that evening and she was bleeding profusely. If the appellant’s case that she had been injured earlier and that he had later struck only three blows were to have been put it would of necessity have been on the basis that those blows were struck at a time when she was already severely injured. We do not believe that any responsible counsel would wish to put their client’s case in that way.
[16]	As to the plea of guilty, it came after the very graphic evidence of the eye witnesses, and after cross-examination directed to the question of how well they could see, given the fact that it was dark at the time the assaults were alleged to have taken place. The eye witnesses were quite definite as to what they saw and that the appellant was the perpetrator of the assault. But for the failure to obtain and watch the video interview and seek instructions in relation to it, we consider that counsel acted properly and competently during the course of the trial. In the circumstances of the case the failure to watch the video interview was of no consequence. For these reasons the appeal against conviction is dismissed.

The appeal against sentence

[17]

Mr Mather responsibly acknowledged that there was little he could say in relation to that appeal. In his written submissions he said that the Judge was in error in believing that the appellant was subject to a sentence at the time of the offending. It is clear, however, that the Judge was not in error in that respect. Mr Mather acknowledged that putting that issue to one side the sentence was strict but not manifestly excessive. The appeal against sentence is dismissed.

Solicitors:
Crown Solicitors, Auckland