R v Puna CA262/06 [2006] NZCA 510 (4 December 2006)

Last Updated: 6 February 2014

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA262/06

THE QUEEN

v

TRACEY ANDREW KORO PUNA

Hearing: 13 November 2006

Court: O'Regan, Potter and Miller JJ Counsel: R D Stone for Appellant

K B F Hastie for Crown

Judgment: 4 December 2006 at 11 am

_{JUDGMENT OF THE COURT}

A We extend the time for the filing of the notice of appeal to 28 July 2006.

2. We agree to receive the affidavits of the appellant and his trial counsel, but not that of Mr Abraham.

_{C We dismiss the appeal.}

R V TRACEY ANDREW KORO PUNA CA CA262/06 4 December 2006

REASONS OF THE COURT

_{(Given by O’Regan J)}

Introduction

[1] The appellant Mr Puna was convicted after a jury trial of sexual violation by digital penetration of a young girl. He was sentenced by the trial Judge, Judge Barry, to a term of imprisonment of two years. He was convicted and sentenced in October

2005, but his appeal was not filed until 26 July 2006. He seeks leave to appeal out of time. He has now completed his sentence.

Grounds of appeal

[2] The grounds of appeal which were pursued at the hearing are:

(a) The appellant was not given adequate opportunity or advice from his trial counsel regarding the giving of evidence at trial. The appellant did not give evidence but he deposed in an affidavit presented to this Court that he would have liked to give evidence;

(b) On the evidence presented by the Crown at trial there was insufficient opportunity for the events to have occurred as the complainant claimed, and Crown witnesses were not sufficiently cross-examined to clarify this issue at trial.

[3] The case for the appellant is that these grounds, when considered on a cumulative basis, establish that a miscarriage of justice occurred.

New evidence

[4] Three affidavits were filed in this Court in support of the appeal. These were:

(a) An affidavit from the appellant, in which he deposes that he would like to have given evidence at trial, but that his trial counsel did not give him this opportunity. The appellant also refers to the lack of opportunity for the offending to have occurred. We will revert to that issue later.

(b) An affidavit from the appellant’s trial counsel. He deposes that he was exhausted and ill prior to the trial and had unsuccessfully sought an adjournment because he felt he was under-prepared. He says that he was concerned that the appellant had a previous conviction for male assaults female. He mistakenly believed that if he put the complainant’s character and honesty at issue then the appellant would be cross-examined on that prior conviction, and that if that occurred any good work achieved would be washed away. He says he made a decision that he would conduct the trial without the appellant giving evidence or calling character evidence. He did not discuss this with the appellant. Trial counsel also provides an explanation for the late filing of the appeal.

(c) An affidavit from a private investigator, Mr Abraham. He outlines the exercise he undertook to establish the limited time in which the offending could have occurred on the basis of the evidence led by the Crown at trial.

[5] The appellant sought leave to adduce this evidence and we agreed to receive it on a provisional basis and rule on its admissibility in this judgment. There is no controversy as to the admissibility of the affidavits of the appellant and his trial counsel. But the affidavit of the private investigator does not meet the test for admissibility of evidence on appeal outlined by this Court in R v Bain [2004]

2 NZLR 638 at [22]-[23] in that it is not fresh, and is not of sufficient cogency to be accepted on appeal notwithstanding that it is not fresh: see [16] below.

Extension of time

[6] The appellant’s appeal was filed about eight months out of time. An explanation for this is provided by the appellant and his trial counsel and the Crown does not oppose the granting of an extension of time. We are satisfied that it is appropriate to grant an extension of time in the circumstances.

Facts

[7] The complainant was in the care of the brother of the appellant’s then partner. We will refer to the appellant’s partner as “T” and her brother as “N”.

[8] The offending came to light when the complainant was ten years old as a result of a disclosure she made to her aunt following a counselling session at Women’s Refuge.

[9] The offending occurred two years earlier, in August 2002, when the complainant was 8 years old. The timing was established because the complainant said that the offending occurred when her brother had meningitis. N gave evidence that this occurred in August 2002, and the complainant’s brother was hospitalised for a time during that month. While he was in hospital the complainant and a younger sister lived with the appellant and T.

[10] The Crown case was that the offending occurred on the day on which the mother of T and N returned home from Australia, and T had gone to the airport to collect her. N had borrowed T’s car the previous evening and had not returned it in time, so T had had to make alternative arrangements. The evidence before the Court was that T had left for the airport in another car and had driven just a few houses down the road when she saw N driving up the driveway in her car. This was significant because the time difference between T’s departure and N’s arrival was obviously brief, and that time was, on the Crown’s case, the time at which the offending against the complainant occurred. There was also a dispute as to whether the complainant’s younger sister, who was about 3 years old at the time, remained at the address with the complainant and the appellant. The evidence of T was that she

did, and the appellant also said this in his police statement. The complainant and N

said she did not. But nothing turns on this.

Lack of opportunity

[11] The first ground of appeal is that trial counsel failed to highlight adequately to the jury the very short period of time within which the offending could have occurred. It was said there was no opportunity for the offending to have taken place in such a short period of time.

[12] The evidence on the period between T’s departure and N’s arrival was as follows:

(a) The complainant’s evidence was that she and the appellant were playing a game in the kitchen. The appellant told her to sit on his knee and then he put his hands down her pants, and moved his fingers around the inside of her private parts. She said this went on for “about a minute”.

(b) In his police statement, the appellant said that on the day T picked her mother up at the airport, he was alone with the children “briefly, a couple of minutes”. He said that after T’s departure the complainant and her sister watched television in the lounge as he checked his plants in the middle bedroom of the house. He said he heard a car on the shingle drive, and that N came in and spoke to him about how he had just missed T. He said it was only “a minute or two minutes” between T leaving and N arriving.

(c) T’s evidence was that when she left the complainant and her sister were watching TV in the lounge and the appellant came to the door to say goodbye. She then drove away and when she was “probably just a few houses down the road” she saw the car driven by N arriving at the appellant’s house.

(d) N’s evidence was that when he arrived at the appellant’s house, the appellant answered the back door.

[13] The affidavit of Mr Abraham which the appellant seeks to adduce in this Court reports on tests which he undertook at the house at which the offences were said to have been committed. He drove out of the driveway of the property and down the street in either direction, and measured the time it took to drive to the point at which the driveway of the appellant’s property was no longer able to be seen. He calculated that the time was between 24 and 36 seconds, depending on the direction in which the car was driven from the address.

[14] Counsel for the appellant, Mr Stone, said that on the basis of the evidence presented at trial there was insufficient opportunity for the offending to have occurred. He said there was only a matter of seconds for the offence to have occurred, yet there was no indication from the complainant that the offending was rushed. He said the issue of timing was crucial yet neither T nor N were cross- examined in any detail about the timing issue and the cross-examination of the complainant did not refer to the timing issue at all.

[15] On behalf of the Crown, Ms Hastie said that the short time between T’s departure and N’s arrival on the day of the alleged offending was a matter which was before the jury. It was clear from T’s evidence this was a short period, and the appellant’s statement also made that point. It is clear from the Judge’s summing up that defence counsel made something of the short period, because in summarising the defence case the Judge notes that defence counsel submitted that N’s arrival was very soon after T’s departure because T said she saw N arriving in the car as she was pulling away up the street on her way to the airport. The offending was described by the complainant as taking only about a minute, and even if the period between T’s departure and N’s arrival was short, there was still an opportunity for the offending to have occurred: there was no reason for the appellant to have anticipated N’s imminent arrival. She said that the new evidence of Mr Abraham added little, apart from establishing a time period between the departure of T’s car and the arrival of N’s car. How that related to the time at which T was farewelled at the door by the appellant, and the appellant answered the door to N could not be established, but the

evidence before the jury was that the time period was a very short one and the new evidence simply confirmed that fact.

[16] We agree with Ms Hastie’s submission on this aspect of the case. While another counsel may have made more of the short time period in cross-examination of N and in closing, there is nothing to indicate that the jury would have obtained any significantly different information about the shortness of the time period from that which was before the jury at trial. The best that could have been established was that the time period was short, but given the complainant’s evidence as to the brief period during which the offending occurred, that would not have been decisive. In light of that conclusion, we do not consider that the evidence of Mr Abraham is of sufficient cogency for this Court to receive it on appeal.

Failure to call appellant to give evidence

[17] The second ground of appeal relates to the failure of trial counsel to call the appellant to give evidence at trial.

[18] In his affidavit, the appellant said he would have liked to give evidence because he was not guilty of the charge and would have liked to tell the jury that. He said his trial counsel did not give him the opportunity and he did not question that because he thought his lawyer knew best. He said he could have explained that he had done nothing to the complainant, and was never alone with her as she suggested because her little sister was always with them. He said it was less than a minute between T’s departure to go to the airport and N’s driving up the driveway. He said that, in “the minute between when [T] left and [N] came up the drive” he checked his plants and was walking to the bathroom to fill up a bucket of water.

[19] Trial counsel says in his affidavit that he decided to conduct the trial without the appellant giving evidence and that he did not discuss that decision with the appellant, but rather told him of it. He said he explained his reasons but did not give him a choice.

[20] It is clear that this is not a case of failure to follow instructions, and Mr Stone accepted this. However he argued that trial counsel’s failure to take instructions on the giving of evidence was a radical error which prejudiced the outcome of the trial because the only evidence which could directly refute the complainant’s evidence was the appellant’s own evidence.

[21] There was no dispute that the approach to the consideration of allegations of trial counsel error is that set out in R v Sungsuwan [2006] 1 NZLR 730. The position is summarised in the judgment delivered by Gault J on behalf of Gault, Keith and Blanchard JJ:

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 a 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.

[22] We accept that trial counsel should have given the appellant the choice of giving evidence at trial. He was in error in not doing so. The issue for us therefore is whether that error has led to a miscarriage of justice.

[23] The appellant now says that he would have given evidence if he had known he had that choice. It is hard to reconcile that with his unquestioning acceptance of his lawyer’s decision not to call him “because I thought he was my lawyer and he knew best”, and his earlier observation that he had talked to his lawyer about the trial “but still really did not understand what was going on”.

[24] We think it likely that if the issue had been discussed by trial counsel with the appellant as it should have been, trial counsel would have advised the appellant against giving evidence for the same reason that counsel decided to conduct the trial without the appellant giving evidence. And it is likely that advice would have been accepted given the appellant’s unquestioning acceptance of his lawyer’s advice. On

that basis, the error of counsel in not giving the appellant the choice of giving evidence did not affect the conduct of the trial.

[25] Nevertheless, it is prudent to assess the appellant’s case on the basis of an assumption that if he had been given the choice he would, in fact, have given evidence. In that event, he would have had the opportunity to repeat the denial in his police statement in the form of sworn testimony but, would, of course, have also subjected himself to cross-examination by the prosecutor. He does not suggest that he would have been able to say anything more than what he said in his police statement, or otherwise add to the pool of evidence which was before the jury about the circumstances of the alleged offending, and in particular the short time period during which the opportunity to offend arose.

[26] In those circumstances, we are not satisfied that trial counsel’s failure to advise the appellant that he had a choice to give evidence led to a real risk of a miscarriage in the present case.

Result

[27] We therefore dismiss the appeal.

Solicitors:

Souness Stone, Hastings for Appellant

Crown Law Office, Wellington