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Court of Appeal of New Zealand |
Last Updated: 22 January 2014
PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED
BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA121/05
THE QUEEN
v
ALLAN BORLEY
Hearing: 28 November 2005
Court: William Young, Potter and Ellen France JJ Counsel: D P H Jones QC for Appellant
J C Pike for Crown
Judgment: 12 December 2005
JUDGMENT OF THE COURT
The appeal against conviction and sentence is
dismissed.
REASONS
(Given by William Young J)
R V BORLEY CA CA121/05 12 December 2005
Table of Contents
Para No
Introduction [1]
Overview
Background [3]
The complaint by B [5] P’s complaint [7] The video interviews of the complainants [8] The police interview of the appellant [13]
The trial [14] The basis of the appeal against conviction [21] Dynamics of the case [22] Verdicts not supported by the evidence [32] Representation at trial
General [40]
The decision not to give evidence [42] Evaluation [45] Cross-examination of the complainants [49]
Result of the conviction appeal [52]
The sentence appeal
[53]
Introduction
[1] The appellant, Allan Borley, was tried in the High Court at
Hamilton before
Venning J and a jury on an indictment which alleged:
(a) Count one - indecent assault against B, a girl then under the age
of
12 years.
(b) Count two - sexual violation by unlawful sexual
connection
(mouth/penis contact) in respect of P.
(c) Count three - sexual violation by unlawful sexual connection (digital
penetration) in respect of P.
(d) Count four - indecent assault against P, a girl then under the age
of
12. This count was laid in the alternative to count three.
He was found guilty by the jury on counts one, two and three and
Venning J subsequently sentenced him to preventive detention
(fixing a
minimum term of imprisonment of five years).
[2] The appellant now appeals to this Court against conviction and
sentence.
Overview
Background
[3] The two complainants are sisters. B was five at the time of the
alleged offending and P was three.
[4] B and P lived with their mother, father and younger sister in a
house which adjoined that occupied by the appellant, his
wife and their son (L).
B attended the same primary school as L and she and P frequently played at the
appellant’s property
with L.
The complaint by B
[5] On Saturday 6 March 2004, B first made an allegation of
abuse to her mother.
[6] Her mother’s evidence was that B hopped into her bed that
morning and remarked that Allan had touched her bottom.
P’s complaint
[7] The evidence is not entirely clear as to when P first complained but it may be that it was at the same time as the complaint was made by B. P was present at the time the complaint was made and, on her mother’s evidence, made some remarks which conceivably could have been in the nature of a complaint. But, in any event,
on the following Monday, P gave her mother a reasonably full account of what
she claimed to have been the appellant’s offending.
The video interviews of the complainants
[8] After the matter was referred to the police, the two girls were
interviewed by Ms Julie Peake, an interviewer for the Department
of Child, Youth
and Family Services.
[9] B, who was interviewed first, told Ms Peake that the appellant had
put his hand down her pants and touched her genitals.
This gave rise to count
one of the indictment which alleged indecent assault. B was five years and four
months old at the time
of the interview.
[10] The basis for count two is the following discussion between P and Ms
Peake:
P He put his bottom in mouth [putting fingers in her mouth].
...
P It he put this thing on his bottom and then put it in my mouth
[poking fingers in mouth].
JP So what did he put in your mouth. P His bottom.
JP And what’s his bottom.
[11] Later in the interview, she said:
JP Mm so whereabouts did Allan’s poky out bottom go. P In my
mouth.
[12] P also told the interviewer that the appellant hurt her bottom when “he poked his finger.” This allegation formed the basis of count three. When asked “what did he hurt your bottom with,” P replied “his finger.” When asked what a bottom was
for she answered that a bottom was for “doing wees” and then
stated that “bottoms are for poos.” The interviewer
asked whether
the appellant hurt the part of her bottom that was for “wees” or
“poos” to which P answered
“wees.”
The police interview of the appellant
[13] Detective Sergeant Ross Patterson conducted a video interview with
the appellant who denied the allegations albeit in what
was sometimes an unusual
way:
RP Yeah. Um so Allan what, what we have is an allegation from both the
girls that when they’ve been at your place that
they have been
inappropriately touched, okay
AB Mm yeah
RP And that amounts to your hand going um into the genital area of the
girls, that’s what the allegations is
AB Yeah
RP Okay so do you recall any incidents of that
AB No
RP So, sorry
AB At no time did I ever touch them within their genital areas
RP No time, have you touched them at all for any reason
AB Well there are times when they um have played
RP Mm
AB and have been playing with my son and um we’ve had contact
then, but out of all those times I’ve always had my wife with
me,
so
RP So when they’re playing with your son are you
saying you are playing with them
AB No, I was playing with my son
RP Yeah
AB Playing at what ever was playing with before his car or something
and they were there and playing as well.
RP Oh Okay and you say that you wife is always there when the girls
visit
AB Yeah, yeah
RP There haven’t been any other occasions
AB No they’ve been told that they’re not to come over
when my wife’s not around
RP And that reason okay. Um so, [B] has said that on one occasion
that um, when you wife has been there that there’s been an opportunity
in
the lounge when you’ve been able to touch here without anyone seeing, just
the one occasion
AB No, I don’t recall that
RP Okay she recalls it being about the time of her birthday, she came
over to your place on the day of her birthday
AB Oh I wouldn’t know when her birthday was so ......
RP Its November, so it would have been late last year, maybe in the
last year
AB Oh okay
RP Yeah okay she says on that occasion your hand went into her
genital area under her pants
AB Mm I can’t recall the time of that
RP You can’t recall the time
AB No, I can’t say that would have happened
RP Sorry
AB I can’t, I can’t, I can’t say that it would have
happened
RP Ok you can’t say it would have happened
AB No
RP Is there a possibility it happened
AB No
RP Okay and then the other girl [P] has said um, made allegations
of similar, similar nature
AB Mm
RP that you hands have been in her pants and has demonstration
so
AB No, once again I can’t say I recall ever doing anything
like that, or even attempting to or desiring to or anything
RP Okay
AB Relating to that
...
RP Why would they be saying that then Allan
AB I couldn’t say,
RP Because you couldn’t imagine kids making up a story like
that at their age
AB Well I can imagine those two making up stories
RP You could
AB Yes
RP Why is that
AB On quite a few occasions they have made up stories on various
other things
RP Like
AB Like when they wanted to come over to play they would make up
stories that they’d had permission to come over and then we would
find out
that they hadn’t, or, or they’d be, [B] and [P] would be trying to
compete with each other on doing things,
one would say one thing and the other
would try better one another in competition with each other and make up all
sorts of stories.
I couldn’t be very specific be cause ah I had no reason
to sort have remembered these things. That on quite a few occasions
they would,
they would come to the back door um and say that we’re allowed to come and
play and then we’d phone their
parents up and they’d say no
they’re not supposed to be there and they get sent home.
RP My experience of kids of that age is unlikely that they make up too
big a story, cause they’re, they’re a bit
young really,
wouldn’t you agree
AB Nah.
...
RP So I just want the truth about what happened you know, that’s all I
want
AB Okay the scenario of the bum thing, I do vaguely recall an
incident that happened
RP Yeah
AB Where they, they have these ice blocks in the plastic you know
the little zooper trooper ice blocks
RP Yeah, no I don’t know what you mean, but carry on
AB Yeah they’re a long ice block, they always have one when
they come over
RP Right
AB There was a situation where she was eating an ice block and she
couldn’t get it out of the, squeeze it out of the container
so I knelt
down in front of her and she was pulling on it and trying to get it into her
mouth and I was trying to squeeze it out
and at the same time, oh you know she
was nah nah nah, so I stuck my thumb in her mouth right
RP Yeah
AB and she goes, “oh what was that”.
RP and I said, “It was my thumb”
AB and she said, “oh what did you stick my, what did you stick
your bum in my mouth for”. I said, “I didn’t,
I stuck my
thumb in your mouth”, and that’s the only way I could think that
sort of a statement could have come from,
because she said it to me later on,
“why did you do that to me” and I said “I didn’t, that
was my thumb”
and she wouldn’t accept that.
RP So which girls this um
AB That [P]
(Emphasis added)
The trial
[14] The first of the complainants to give evidence was P. By the time
of the trial she was four years and four months old.
While she was in the
witness box, her evidential interview was played and she was also
questioned by the prosecutor before
being cross-examined by the
appellant’s counsel, Mr Gordon Matenga.
[15] Perhaps predictably there were some difficulties with her evidence.
For instance she claimed that the digital penetration
incident took place in the
kitchen with the appellant’s wife being present. She was also unclear as
to what was inserted into
her mouth:
Q And you said his bottom was like a pokey out thing
remember saying that?
A His finger.
A [nods]
Q Do you remember telling Julie about that? A [nods]
A Pokey out thing.
Q Right do you know any other names for what a pokey out thing is? A A finger.
A [shakes head]
A [nods] mmm.
Q And did he do that? A Yep.
Q And then you said he put his pokey out thing in my mouth okay? A [nods]
A [nods] Q Okay? A Finger.
Q A finger did you say? A [nods]
Q Where on Allan’s body is the pokey out thing? A [indicates
finger]
In general, her evidence as to counts two and three seemed to merge. She said that both incidents occurred in the kitchen and that she was eating an iceblock at the time.
[16] Mr Matenga cross-examined P in a way that was low
key and non-confrontational. In the course of her
cross-examination, P
conceded that she only stayed at the Borley house if the appellant’s
wife was present. She
also acknowledged that an incident had occurred in
which the appellant had put his thumb in her mouth instead of an ice
block.
[17] At the time of the trial, B was six years and one month old. Her
evidential interview was played and then she was
asked questions by
the prosecutor and defence counsel. There were inconsistencies between her
oral evidence and the evidential
interview as to, for instance, the date of
the offending, how often it happened and where it occurred.
[18] The cross-examination was again low key and non-confrontational.
In the course of it, however, B:
(a) Confirmed that she had sometimes untruthfully told Mr Borley that she had
her mother’s permission to be at the Borley house;
(b) Gave evidence as to an incident on the trampoline which conflicted with
P’s account; and
(c) Accepted that on some issues (including when the offending occurred)
what she had told the evidential interviewer was not the truth.
Mr Matenga also developed some other inconsistencies between what she had
said during the interview and her evidence at trial.
[19] The other Crown witnesses were Ms Julie Peake (the interviewer), the
complainants’ mother and Detective Sergeant Patterson.
[20] The only defence witness was Mrs Borley.
The basis of the appeal against conviction
[21] Mr Jones QC for the appellant maintained in relation to each count
that the verdicts were not supported by the evidence.
He also contended that
there had been a miscarriage of justice associated with the way in which the
appellant was represented.
We will discuss both aspects of the appeal
separately, but before we do so, we should say something about the dynamics of
the case.
Dynamics of the case
[22] The case against the appellant rested almost entirely on the
evidence of the two complainants. As is common in cases of
this sort, their
attempts to provide contextual detail, for instance as to when and where the
alleged offending occurred, resulted
in inconsistencies between what they said
when they complained, when they were interviewed and at trial. In the case of
P, there
were major difficulties with her oral evidence as to the count two
incident.
[23] On the other hand, the case was by no means easy to
defend.
[24] The appellant has six previous convictions for indecent assault in
relation to girls aged eight and younger. This offending
occurred between 1996
and 1998 and involved conduct which was generally similar to that alleged by B
and P. The defence had to be
conducted so as not to permit these convictions to
be referred to by the prosecution.
[25] There are a number of features of the accused’s interview to
which it is necessary to refer:
(a) The tendency on the part of the appellant when confronted with the
allegations to say that he could not recall incidents
of the nature
alleged with unequivocal denials only coming later.
(b) The reference to the arrangement in terms of which the appellant’s wife was always present when the complainants were on the property.
(c) The appellant’s response to the allegations made by P to the
effect that he could not “recall doing anything
like that, or even
attempting to or desiring to or anything”.
(d) The appellant’s explanation for why the complainants might
make false allegations against him (in effect that they
were natural
liars).
(e) The appellant’s account of what we will call the
“bum/thumb”
incident towards the end of the interview.
We will comment on each of these aspects of the interview in
turn.
[26] The appellant’s initial assertions of an inability to
recall in lieu of unequivocal denials suggested that
the appellant might not
be a strong witness in his own defence.
[27] Part of the appellant’s defence was that the presence
of his wife at all material times meant that
he had not had the
opportunity to offend. But the appellant’s reference to the
arrangement that his wife was always
present when the complainants were on the
property was also suggestive of the strategies which those convicted of sexual
offences
against children are encouraged to take to avoid further offending. So
it was possible that some members of the jury might have
inferred from what
was said at interview that the appellant may have had previous
convictions for sexual offending involving
children. We suspect that this was
the appellant’s fear. We say this because, in a brief of evidence which
he provided to
Mr Matenga, he addressed the arrangement in this way:
...[My wife] and I began to discuss the obvious desire of the
children wanting to play together. As far as I was concerned
it was OK as we
would enforce the policies that we always had that she was the primary caregiver
and that they were not to come over
when she was not here, as this was what she
was taught by her parents and she would follow on from that. I was ok with this
and
that was how it has always been. ...
[28] There is perhaps a “protests too much” quality to this part of the appellant’s proposed evidence. Further, there could hardly have been anything in the nature of an invariable practice between the appellant and his wife that he was never left alone
with young children because his six previous offences of indecent assault on
young girls related to events which occurred after
his marriage. It
is possible the appellant’s anxiety about this aspect of the case might
have led him to make, in evidence,
remarks about the provenance of the
arrangement and its terms which could justify reference in cross-examination to
at least some
the circumstances associated with his prior offending.
[29] It will be recalled that when first confronted with the allegations
made by P
the appellant’s response was in these terms:
No, once again I can’t say I recall ever doing anything like that, or
even attempting to or desiring to or anything.
Read sensibly and in context, the appellant’s denial must be related to
the allegations associated with P rather than as a general
denial of ever
“attempting to or desiring to” interfere sexually with young girls.
It was, however, not far removed
from the sort of assertion which, if given in
the course of evidence, might have provoked an application for leave to
cross-examine
on prior convictions.
[30] If the appellant had given evidence he would very likely have been
asked whether he had any possible explanation for why
the two complainants were
making false allegations against him. As indicated, his response to such
a question at interview
was along the lines that the complainants were natural
liars. In the brief of evidence which he supplied to Mr Matenga he
observed:
... I cannot say what triggered these allegations to begin, but I am sure
that between the two girls they have planed [sic] and contrived
to tell this
story using unassociated incidents and actions that have happened that would fit
their fantasies to create a possibly
believable story, for what purpose I do not
know, but maybe to satisfy their mother’s continual cautioning and
inquiries if
anybody had been touching them in there [sic] private
places.
As well, there is at least an implied suggestion in the brief of evidence
that the complainants’ father may have acted in a
sexually inappropriate
way. On this last point we note that when interviewed by the pre-sentence
report writer while awaiting sentence,
the appellant directly suggested that the
complainant’s father may have secretly abused the complainants with the
result that
the complainants:
... displaced the blame, they confused me with their father.
He went on to say:
... Children are men-orientated.
[31] The “bum/thumb” incident referred to by the appellant
towards the end of his interview cut both ways. As the
evidence of P came out
at trial, it was consistent with what the appellant said at interview, namely
there was an incident in which
he put his finger or thumb in P’s mouth.
On the other hand, what the appellant said meant that he was conceding that P
had
alleged sexual impropriety on his part before B made a complaint and further
that P’s complaint was of the same general nature
as the incident which
was the subject of count two.
Verdicts not supported by the evidence
[32] At the conclusion of the Crown case, Mr Matenga applied
unsuccessfully for s 347 discharges in relation to counts two and
three in the
indictment (ie the sexual violation counts in relation to P). No similar
application was made in respect of count
one (in relation to B).
[33] In his ruling dismissing the s 347 application Venning J reviewed
carefully the evidence associated with counts two and three.
He rejected the s
347 application in relation to count three without any great difficulty. He
concluded, and we agree, that there
was an evidential basis upon which it would
be open to the jury to convict on that count. The Judge had more difficulty
with count
two but decided to leave the count to the jury:
[10] On the evidence something went into the complainant’s mouth.
It is for the jury to consider whether they preferred
the
complainant’s video interview to her subsequent evidence.
...
[13] In the present case there is clear evidence in the video interview as Mr Matenga accepted to support the charge in count 2 of unlawful sexual connection between the accused’s penis and the mouth of [P]. The issue is whether her evidence-in-chief following that yesterday amounts to a recantation of that earlier evidence. On my reading of it I am not able to read it as a recantation of or a withdrawal of the earlier evidence. I note that when describing the incident in the video interview [P] used her fingers to
show what had happened in relation to the pokey out thing in her mouth and
then used her finger to point when describing the pokey
out thing.
[14] While her oral evidence does cause some difficulties for the Crown
on this count a jury might consider that she was, when
referring to a finger
yesterday, relating that back to the use of the finger as a descriptor of what
the pokey out thing did as she
did in her video interview.
[15] Having seen the evidence both of the video interview and the child
complainant giving evidence yesterday I am not prepared
to say that her evidence
on this count from the video interview has been so manifestly discredited or is
unreliable so that it would
be unjust for the count to remain with the jury.
Obviously it is a matter counsel will address in closing and it is a matter
which
the Court will refer in summing up.
[34] When the Judge came to sum up he reviewed the critical evidence in
relation to count two carefully and he concluded this
part of his summing up by
saying:
[42] You might think that the evidence that P gave about that in Court
about that matter is consistent with the accused putting
a finger in her mouth
(or perhaps his thumb) but not his penis. It maybe that you think the
innocent explanation the accused
gave when speaking to the Detective is
supported by the evidence of [P’s], but that’s a matter for
you.
[35] In the course of his argument for the appellant, Mr Jones drew
attention to the difficulties with B’s evidence to which
we have already
referred. Mixed in with the arguments associated with this count were complaints
as to the way in which B was cross-examined,
complaints which we will
discuss separately. Mr Jones also stressed the difficulties with the
evidence of P, difficulties
to which we have also already referred. He stressed
what he said was the uncertainty as to the allegations made by P in relation
to
count two (and particularly whether P was really alleging in her evidential
interview that the appellant had put his penis in
her mouth) and her evidence at
trial to the effect that it was his finger.
[36] Mr Jones discussed the complainants’ ages and their ability to
understand the difference between truth and lies and
the significance of a
promise to tell the truth. He did not challenge their competence to give
evidence but he did make the fair
point that at the age of four years four
months (at trial) P was at the “extreme limit of age for a competent
witness”.
[37] We are of the view that there was an adequate evidential basis for convicting on count one. There was no particular difficulty with B’s evidence other than
commonplace problems in relation to contextual detail. In the end, it was
for the jury to assess the significance of the inconsistencies
as to contextual
detail.
[38] The same is true of count three. In relation to this incident,
P’s no doubt de-contextualised evidence was, nonetheless,
reasonably
consistent.
[39] The real problem is with count two and this has caused us some
anxiety. On reflection, however, we think that a combination
of what P said in
her evidential interview when associated with the appellant’s
“bum/thumb” explanation provided
a legitimate evidential basis upon
which the jury could convict. On this point the Judge came close to inviting
the jury to acquit.
But, as he recognised, and we must too, the decision was
for the jury.
Representation at trial
General
[40] Mr Jones submitted that a miscarriage of justice had resulted from
the way in which Mr Matenga represented the appellant
at trial. In essence, two
complaints are made: first as to the decision of the appellant not to give
evidence and secondly as to
the cross-examination of the
complainants.
[41] The applicable principles have been set out by Gault, Keith and
Blanchard JJ in the Supreme Court in Sungsuwan v The Queen [2005] NZSC 57; (2005) 21 CRNZ
977 at [64] - [70]:
[64] ... Miscarriages of justice may arise from many causes. The conduct of defence counsel in handling the trial is but one possible cause. Conduct giving rise to criticism can occur in many different contexts. There may be acts or omissions in the course of preparation, there may be failure to follow direct instructions from the client, there may be incompetence through inexperience, there may be inadequate or wrong advice to the accused. Often the consequence may be that evidence was or was not (as is alleged here) put before the jury. There may be reasons for that, there may be good reasons, or there may not. They may accord with instructions. They may be based on confidential information in the possession of counsel.
[65] Where error or irregularity is alleged and attributed to counsel,
but that would not have affected the outcome — was
not material —
there will be no need to analyse and judge the conduct of counsel. On the other
hand, where the complaint is
that counsel’s conduct was such as
effectively to deny the accused representation to fairly present the defence,
prejudice
to the outcome will be readily found — and in extreme cases may
need no inquiry.
[66] There will be cases in which particular acts or omissions of
counsel may in retrospect be seen to have possibly affected
the outcome but they
were deliberately judged at the time to be in the interests of the accused. In
some cases the accused will have
agreed or acquiesced — only to complain
after conviction. Where the conduct was reasonable in the circumstances the
client
will not generally succeed in asserting miscarriage of justice so as to
gain the chance of defending on a different basis on a new
trial. Normally an
appeal would not be allowed simply because of a judgment made by trial counsel
which could well be made by another
competent counsel in the course of a new
trial.
[67] But there will be cases, rare cases, as was recognised in
Pointon, where the conduct of counsel, although reasonable in the
circumstances in which it occurred, nevertheless can be shown to have given
rise
to an irregularity in the trial that prejudiced the accused’s chance of
acquittal (or conviction of a lesser offence)
such that the appeal Court is
satisfied there was a miscarriage of justice. The Court will always reserve the
flexibility to identify
and intervene to prevent a miscarriage of justice
however caused.
[68] Often these cases will be able to be analysed without examining the
quality of counsel’s conduct. For example, where
the effect was that vital
evidence was not placed before the jury it might be appropriate to inquire
directly whether that gave rise
to a miscarriage of justice, although that will
need to be considered in light of principles governing the admission of
further
evidence on appeal, including any explanation for its absence from the
trial.
[69] It is necessary to emphasise that the statutory ground of
appeal justifying intervention is that there was a miscarriage
of justice. That
was clearly recognised in Pointon. The focus therefore is on outcome,
with the cause providing context. There has been a trend in judgments since
Pointon, including that of the Court of Appeal in this case, to overlook
this and to regard the need to find some “radical” error
by trial
counsel as a necessary precondition of any consideration of appellate
intervention. This seems to stem from reading “radical”
simply as
“serious” whereas it was clearly intended in Pointon to
carry its correct meaning of fundamental. A “radical” error thus is
one that goes to the root of the trial process
— one that is likely to
have affected the outcome. In that sense it is not a precondition of a
miscarriage of justice; it raises
a risk of a wrong verdict and so itself
constitutes a miscarriage of justice. There is no threshold inquiry necessary
into the seriousness
of counsel’s conduct. In this respect the term
“radical error”, with its pejorative connotation and the tendency
to
equate it with “serious error”, is perhaps better avoided.
[70] In summary, while the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not
have affected the outcome any further scrutiny of counsel’s conduct
will be unnecessary. But whatever approach is taken, it
must remain open for an
appellate Court to ensure justice where there is real concern for the safety of
a verdict as a result of
the conduct of counsel even though, in the
circumstances at the time, that conduct may have met the objectively reasonable
standard
of competence.
The decision not to give evidence
[42] The appellant claims that Mr Matenga advised him that if he gave
evidence, he could be cross-examined on his six previous
convictions for
indecent assault against young girls.
[43] Mr Matenga’s response was in these terms:
9.3 I advised Mr Borley that if he chose to, he could give evidence. I
also advised Mr Borley that if he gave evidence, he
would need to be very
careful about doing so as if his character became an issue, he could be
cross-examined as to his previous convictions.
...
9.6 I advised Mr Borley that my assessment of him is that he would not
be a very good witness. Mrs Borley was of a similar view.
I advised Mr Borley
that in my opinion he should not give evidence but that it was his decision to
make.
...
13. My reasons for advising Mr Borley not to give evidence
were:
13.1 Mr Borley had made a statement recorded on video denying the
allegations.
13.2 Mr Borley did not answer questions well during interviews.
My concern was that he could say something which may open doors to the possibility of being cross-examined as to
his previous convictions.
13.3 My perception was that Mr Borley would not be a good witness in that
his hesitancy in answering questions may have been misconstrued
by the jury.
In short, Mr Borley would have been no match for a skilful crown
prosecutor.
13.4 My intention was to protect Mr Borley.
[44] We heard oral evidence from both the appellant and Mr Matenga. Broadly they stuck to the positions adopted in their affidavits. The appellant accepted that he
was aware that the final decision whether or not he gave evidence was for him
to make (in the sense that if he had insisted on giving
evidence Mr Matenga
would have called him). He also knew that if he gave evidence, the Crown
prosecutor could not automatically
cross-examine him on his previous convictions
and that if this was permitted, it would arise out of the way his evidence
developed.
He acknowledged that he might not have given evidence even if
aware that he almost certainly would not be cross-examined
on his prior
convictions. Mr Matenga accepted that he firmly advised the appellant not to
give evidence and that the appellant
was willing to give evidence. Where
Mr Matenga and the appellant differed in their evidence was primarily as to
matters
of detail and in particular the extent to which Mr Matenga explained to
the appellant the limited circumstances in which he would
be able to be
cross-examined as to his previous convictions.
Evaluation
[45] We agree with Mr Jones that if the appellant had given evidence it is not particularly likely that leave would have been sought or granted for cross-examination on his previous convictions, see for instance R v Anderson [2000]
1 NZLR 667. We also agree that the appellant could have been given advice by
Mr Matenga to avoid making the sort of comments
which would invite an
application for leave to cross-examine. In the result we are left with the view
that the remarks made
by Mr Matenga would have left the appellant with an
impression that if he gave evidence there was a substantial risk of
cross-examination
on prior convictions when, in reality, the risk that there
might be such cross-examination was remote.
[46] On the other hand, we can understand why the appellant’s prior
convictions (and their implications) left Mr Matenga
with the view that the
appellant ought not to give evidence.
(a) If the appellant had given evidence, he would probably have been challenged as to why the complainants had given incorrect or false evidence against him. Throughout the process, when required to address this issue, the appellant has done so in a way which involved
casting aspersions on the characters of the complainants and
sometimes their father. Obviously a denial of the offending
and an associated
allegation that the complainants were lying would not in itself have warranted
the granting of leave to cross-examine.
But extravagant allegations could have
created a situation in which not much more would have been required to justify
the grant
of such leave.
(b) Although the absence of opportunity to offend was part of
his defence, the appellant’s brief of evidence
shows concern as to what
the jury might infer from the existence of the arrangement that he not be left
alone with young girls.
His attempt to explain the provenance of this
arrangement in his brief of evidence did not strike us as convincing and any
amplification
of that explanation in evidence might have invited
contradiction by reference (perhaps muted) to the appellant’s previous
convictions or at least to the background circumstances (eg that on the dates of
the offending he had been alone with particular
girls).
(c) The appellant’s reference at interview in relation to the
allegations as to P that he could not “recall ever
doing anything like
that, or even attempting to or desiring to or anything” was not far
removed from an assertion that he did
not have paedophile tendencies, an
assertion, which again if put in evidence, would invite an application for leave
to cross-examine.
(d) If the appellant had given evidence his concern to
avoid cross-examination on his convictions would have
been a distracting and
constraining influence on the ordinary flow of what he had to say.
[47] There were other reasons why it was sensible for the appellant not to give evidence:
(a) By the time the complainants had finished giving evidence, the
prosecution case was comparatively weak.
(b) If the appellant had given evidence, he could have done little more
than deny the offending but in doing so would
have necessarily invited
the jury to focus closely on some of the difficulties associated with his
interview.
(c) The appellant’s responses at interview suggested that he
would not be a strong witness.
(d) Any remarks along the lines of what he told the pre-sentence report
writer about the men-centred nature of children would
have been very damaging.
We accept that this remark was made in an informal setting and not in a
court. But it was still
in the context of a criminal process and was made at a
time when the appellant was no doubt anxious to avoid a sentence of preventive
detention and thus at a time when he could be expected to be cautious about such
making such remarks. If he had given evidence,
it would not have been easy to
keep his guard up during cross-examination.
(e) His wife was able to, and did give evidence which at least broadly
supported his position (and perhaps more importantly,
showed that she was
standing behind him) and did so in a way which did not attract damaging
cross-examination.
[48] As is apparent, we accept that the appellant was probably left with
a mistaken impression as to likelihood of cross-examination
on his prior
convictions. But we do not see this as giving rise to a miscarriage of
justice:
(a) The appellant knew that he had the final say on whether he gave evidence. He knew that if he gave evidence, cross-examination on his prior convictions would not be automatic but would depend on what he said in evidence.
(b) Mr Matenga had no choice but to raise the issue of
cross-examination on prior convictions with the appellant and there was
credible
basis for his concerns.
(c) The overall advice given by Mr Matenga to the appellant on
the ultimate question whether he should give evidence
was entirely reasonable.
While he may have perhaps over-estimated the risks of cross-examination on prior
convictions there were
a number of other more or less related considerations
which pointed in the same direction to which he could have
referred.
(d) The appellant would not necessarily have given evidence even if he
had not been concerned about the possibility of being
cross-examined on his
prior convictions.
(e) Having heard the appellant, we are firmly of the view that he would
have diminished his prospects of acquittal had he given
evidence. So, in
substance, the advice which Mr Matenga gave him not to give evidence was
sensible and practical.
Cross-examination of the complainants
[49] Mr Jones complained that the defence case was not put directly to
either B or P. It was not put to B that she might be mistaken
and that the
appellant did not touch her bottom. There was no cross-examination about the
discussion that B may have had with P
about the allegations. As well, Mr
Matenga did not squarely confront P with the propositions that the conduct she
alleged had not
occurred and he did not explore her trial evidence that both
incidents occurred when Mrs Borley was present.
[50] Mr Pike’s rejoinder was that questioning on these points might have run the risk of asking “a question too many.” P might have reaffirmed her allegation, which was relatively unclear as it emerged in examination in chief. Moreover, he submitted that the basic points of the defence emerged in the course of cross- examination.
[51] We accept Mr Pike’s analysis of the case. Our assessment of
Mr Matenga’s cross-examination of the complainants
is that it was carried
out sensitively and competently. If he had adopted a confrontational approach
as suggested by Mr Jones and
had put to each complainant in a formal way a
contention that their allegations were false, there was every likelihood that he
would
have received answers which would have been damaging to the defence
case.
Result of the conviction appeal
[52] The appeal against conviction is dismissed.
The sentence appeal
[53] Mr Jones accepted that if the appeals against conviction were all
dismissed there was no legitimate basis upon which the
sentence could be
challenged. The appeal against sentence is accordingly
dismissed.
Solicitors:
Mahon and Associates, Auckland for Appellant
Crown Law Office, Wellington
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