The Queen v Robert [2007] NZCA 364 (27 August 2007)

Court of Appeal of New Zealand

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The Queen v Robert [2007] NZCA 364 (27 August 2007)

Last Updated: 6 September 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 432/06 [2007] NZCA 364THE QUEEN

v

NOOROA ROBERT

Hearing: 22 August 2007

Court: Chambers, Randerson and John Hansen JJ

Counsel: P J Kaye for Appellant
H D M Lawry for Crown

Judgment: 27 August 2007 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

[1] After a jury trial in the District Court at Rotorua, the appellant was found guilty of one count of sexual violation by rape and one count of sexual violation by unlawful sexual connection. He was sentenced to eight years imprisonment.
[2] Initially, the appellant appealed against both conviction and sentence but later abandoned his sentence appeal. The sole ground upon which the conviction appeal is advanced is that the appellant’s trial counsel made a radical error by failing to summons a witness, a Mr Robert Ropiha, to give evidence at the appellant’s trial.
[3] We received affidavits from the appellant and trial counsel, Mr Schulze. Both deponents were cross-examined during the hearing of the appeal. The appellant accepted in cross-examination that, after discussion with Mr Schulze, he agreed with the latter’s advice that it would be unwise to call Mr Ropiha since he was then a serving prisoner with convictions for dishonesty.
[4] That concession effectively disposes of the appeal since Mr Schulze acted in accordance with his instructions. But we add that the evidence which Mr Ropiha would have given would not have materially assisted the appellant in his defence. The offending occurred at a party attended by the 15 year old complainant and several other young women. The complainant’s account was that she had fallen asleep in a bedroom after drinking and taking drugs. She awoke to find the appellant having sexual intercourse with her and she said he also performed oral sex on her. She said all of this was without her consent.
[5] When the appellant was interviewed by the police, he denied having any sexual contact with the complainant. However, when later confronted with ESR evidence establishing that his DNA was found on the complainant’s underwear, he changed his account. He conceded that sexual intercourse had taken place but maintained it was consensual. He denied engaging in oral sex with the complainant.
[6] The issues at trial therefore became whether the Crown had proved beyond reasonable doubt that the complainant did not consent to the activity and that the appellant did not believe on reasonable grounds she was consenting.
[7] We also received an affidavit from Mr Ropiha. In his affidavit, Mr Ropiha stated that, at one point during the party, he and his brother started encouraging the complainant to “hook up” with the appellant. At a later stage, he saw the complainant go into one of the bedrooms. After she went in, he saw the appellant go into the same room. Later again, Mr Ropiha said he saw that both the appellant and the complainant had come back to the party; they continued to drink in the lounge with the others present; and the complainant seemed comfortable being there. However Mr Ropiha went on to say that, the next morning, there was some sort of dispute between the complainant and his brother; the complainant became upset and complained that the appellant had raped her.
[8] None of this evidence would have materially assisted the appellant because:

• Mr Ropiha does not suggest the complainant expressed any willingness to “hook up” with the appellant.
• He does not mention any display of affection between the two.
• There is no suggestion that the complainant and the appellant went into the bedroom together or emerged together from the bedroom.
• His evidence that the complainant went into the bedroom first and that the appellant did so at a later time is consistent with the complainant’s own account.
• Mr Ropiha confirms the complainant’s evidence that, the following morning, she made an allegation of rape.

[9] Not only would Mr Ropiha’s evidence not have assisted the appellant, but calling him would have inevitably exposed him to cross-examination about his past convictions for dishonesty and would have damaged the appellant’s case when it became clear that the appellant was associated with a convicted criminal currently serving a term of imprisonment.
[10] We conclude that the appellant’s trial counsel acted in accordance with the appellant’s instructions and that his advice not to call Mr Ropiha was entirely appropriate.
[11] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington