The Queen v Kiliva and Kiliva [2008] NZCA 459 (3 November 2008)

Last Updated: 12 November 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA194/2008CA195/2008[2008] NZCA459THE QUEEN

v

SEFU KILIVAATIGI KILIVA

Hearing: 22 October 2008

Court: Baragwanath, Priestley and Venning JJ

Counsel: B Castelino for Appellant
N P Chisnall and S M Earl for Crown

Judgment: 3 November 2008 at 4pm

JUDGMENT OF THE COURT

A Both appeals against conviction are dismissed.

B Both appeals against sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Priestley J)

The appeals

[1] The appellants are brothers. They jointly faced three counts, being one of unlawful sexual connection and two of sexual violation by rape. The victim was a “sex worker” who entered the appellants’ vehicle one morning in February 2007 as dawn was breaking. The appellants were heavily intoxicated. They drove the sex worker to a South Auckland park, where the offending occurred.
[2] The appellants’ jury trial, presided over by Judge A Johns, took place in December 2007. The appellants were separately represented at that trial. They called no evidence. The jury convicted them.
[3] The Judge sentenced Sefu Kiliva to eight and a half years’ imprisonment and Atigi Kiliva to six years’ imprisonment. She regarded, for reasons not relevant here, the former appellant’s culpability as somewhat greater.
[4] Appeals were lodged against both conviction and sentence. Although the appeals against sentence were not formally withdrawn, Mr Castelino accepted that he was unable to advance any reasons as to why the sentences were manifestly excessive.
[5] The appeals against conviction were effectively challenges to the competence of their counsel at trial who, it was claimed, had not followed instructions. Sefu Kiliva’s counsel was Ms M Tuilotolava. Atigi Kiliva’s counsel was Mr P Le’au’anae. Both had sworn affidavits at the request of the Crown and were cross-examined by Mr Castelino.

The evidence on appeal

[6] The major appeal point advanced in the written submissions was discernible from the appellants’ two affidavits on which, with assistance from a Samoan interpreter, Mr Chisnall cross-examined. The affidavits were virtually identical and relevantly gave the appellants’ respective recollections of their encounters with the sex worker. They deposed they were under the impression the sexual activity was consensual and followed an agreement concluded with the sex worker.
[7] They deposed that at no stage did the complainant say anything to suggest she had withdrawn her consent to sex. Their major complaint was that the jury did not hear their side of the story in a situation where credibility was at issue. They said that the jury was “rightly prejudiced against [us] and entered a verdict of guilty based on the evidence that they heard and saw, resulting in a gross miscarriage of justice....”
[8] This affidavit evidence was clearly crafted to support counsel’s written submission that trial counsel had made a “radical error” in not calling the accused to give evidence. In counsel’s submission, had such evidence been given, the jury would have had a basis to conclude that the accused subjectively believed the complainant had consented to the sexual activity.
[9] The affidavits of both Mr Le’au’anae and Ms Tuilotolava described their handling of the trials and the instructions they received. The detail was such that the appellants were obliged to amplify their affidavits by viva voce evidence at the appeal hearing.
[10] It is unnecessary to canvass trial counsel’s affidavits in much detail. Mr Le’au’anae, who acted for Atigi Kiliva, conducted a lengthy and detailed interview with his client at their first meeting, which was in the Manakau District Court cells on 26 February 2007, two days after the offending. Mr Le’au’anae speaks Samoan fluently. On occasions he provided Ms Tuilotolava, who did not speak Samoan, with interpreting help. Counsel’s perception was that the younger brother, Sefu Kiliva, was less proficient in English. Mr Le’au’anae confirmed that the basis of the defence to be run at trial was consent on the part of the complainant. Some points which were consistent with Atigi Kiliva’s original narrative to his counsel were elicited from the complainant in cross-examination.
[11] Mr Le’au’anae was adamant that at no stage did his client Atigi Kiliva indicate he wanted to give evidence. At the conclusion of the Crown case, during the lunch adjournment, both he and Ms Tuilotolava spent some time in the cells discussing the trial with their clients. Mr Le’au’anae deposed there was a discussion between him and Atigi Kiliva about giving evidence. Advice was given about the matters raised in cross-examination. Advice was also given that one of the difficulties with the defence was the extent of the accused’s intoxication at the time of the offending. The risks of cross-examination were explained.
[12] Mr Le’au’anae stated a decision was made that neither his client nor his brother Sefu would give evidence. Mr Le’au’anae was present when Ms Tuilotolava wrote on a court document a note to the effect that Sefu did not wish to give evidence. This was translated to Sefu and he wrote out a translation of the words “I don’t want to give evidence” in Samoan and signed it. Mr Le’au’anae witnessed Sefu’s signature.
[13] No parallel written instruction was obtained from Mr Le’au’anae’s own client. But Atigi Kiliva was sitting beside his brother throughout and heard everything. Mr Le’au’anae was very clear that Atigi too stated he did not wish to give evidence at his trial.
[14] Ms Tuilotolava’s evidence was similar. She had previously acted for Sefu Kiliva in 2004. Her first interview took place two days after the offending. Notes were taken.
[15] Ms Tuilotolava explained carefully to her client the various ingredients of rape which the Crown had to prove. She deposed (and was not challenged on this) that she explained the importance of the appellant’s subjective view and indicated that relevant evidence could be elicited either by the appellant giving evidence or through cross-examination. The advantages and disadvantages of the appellant giving evidence were explained.
[16] There was forensic evidence, favourable to Sefu Kiliva, relating to DNA taken from the saliva of both the complainant and the accused, which suggested inconsistencies with the complainant’s evidence.
[17] Ms Tuilotolava’s evidence on the final instructions given by her client at the close of the Crown case on 7 December 2007 has already been detailed (above [12]) and is totally consistent with Mr Le’au’anae’s evidence.
[18] The best that can be said of the appellants’ viva voce evidence attempting to dispute their trial counsel’s evidence was they asserted, but with considerable vagueness as to detail, that they had given instructions they wanted to give evidence but those instructions were not followed. Faced with the signed hand-written instruction, Sefu Kiliva could only say that he signed the form “not knowing my rights to remain silent” and that his lawyer had told him not to give evidence because it might jeopardise his case. He later accepted his lawyer had given him advice not to give evidence and that he had followed it.

Discussion

[19] Mr Castelino accepted that the two appeals revolved around a single narrow issue. Were the appellants given the opportunity to give evidence at their trial? The answer to this question will depend on a credibility finding of this Court.
[20] We are satisfied:

• (a) Both appellants were competently represented by experienced trial counsel.
• (b) On the issue of whether or not to give evidence, both appellants received standard and unexceptional advice.
• (c) Both appellants were well aware at the close of the Crown case at their trial that they could give evidence if they so chose, and there were advantages and disadvantages in so doing.
• (d) Both appellants elected that they would not give evidence, with Sefu Kiliva signing a short written instruction to that effect, and Atigi Kiliva giving his counsel identical verbal instructions.
• (e) Neither appellant at any stage gave their counsel contrary instructions that they wished to give evidence at their trial.
• (f) The autonomy of each accused to decide whether or not to give evidence was preserved. The advice they received did not override that autonomy. Nor at any stage were the appellants overborne by counsel. Nor were their views ignored.

[21] It thus follows that the appeals against conviction, based as they were on claims of counsel incompetence, and in particular refusal to follow instructions, must be dismissed.
[22] No submissions were advanced to justify a conclusion that the sentences imposed by the Judge were manifestly excessive. The appeals against sentence must fail for this reason.
[23] The appeals are dismissed.

Additional comment

[24] The appeals had little merit. Responsible counsel should have realised that. The written submissions filed and the supporting affidavits fell well short of presenting any respectable appeal point. If the appellants had a firm belief they had given their trial counsel specific instructions which had been ignored, those complaints should have been set out in detail and with specificity. If the appellants wished to take issue with the affidavits of Mr Le’au’anae and Ms Tuilotolava, then detailed and focused affidavits in reply should have been filed. They were not.
[25] Perhaps as a result Mr Castelino frequently had difficulties asking precise questions in cross-examination.
[26] Not least in cases where public money is involved, there should be careful scrutiny of the merits and a focused presentation of the case.

Solicitors:
Crown Law Office, Wellington