The Queen v Rangihuna [2008] NZCA 475 (10 November 2008)

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The Queen v Rangihuna [2008] NZCA 475 (10 November 2008)

Last Updated: 19 November 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA80/2008 [2008] NZCA 475THE QUEEN

v

TERRENCE TUI RANGIHUNA

Hearing: 21 October 2008

Court: Baragwanath, Priestley and Venning JJ

Counsel: A J S Snell for Appellant
K Raftery for Crown

Judgment: 10 November 2008 at 10am

JUDGMENT OF THE COURT

A Leave to appeal is granted.

B The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1] The appellant, Terrence Tui Rangihuna, was convicted on two counts of unlawful possession of a firearm, threatening to do grievous bodily harm, and the commission of a crime with a firearm. He was sentenced on 21 December 2007. He now seeks to appeal the convictions. His appeal is out of time.

Background

[2] On the afternoon of 15 October 2006 the appellant went to a property where the complainant, Mr Dewes, was living in a caravan. He drove up the driveway to the caravan. The appellant had two rifles in his car, a .22 and a .303. He stopped about ten metres from Mr Dewes. While still in his truck the appellant raised the .303 rifle and pointed it at Mr Dewes, threatening to shoot him. Mr Dewes ran behind a tree for cover. The appellant got out of his truck and followed him. Mr Dewes then ran down a small bank into the nearby bush. At this point the appellant chambered a round into the .303 rifle, fired a single shot and left.

The application for extension

[3] The appellant applies under s 388(2) of the Crimes Act 1961 for an extension of time in which to appeal his conviction. Although he had dismissed his trial counsel, Mr Clarke, prior to sentencing, he still considered that Mr Clarke’s firm should file a notice of appeal for him. On 6 February 2008 he wrote to Mr Clarke’s firm requesting it to file an appeal. The firm sent him a blank notice of appeal form. Mr Rangihuna completed that himself on 29 February and subsequently filed it on 5 March 2008.
[4] Mr Rangihuna’s delay in lodging the appeal is short. He always intended to appeal. He had limited access to legal advice because he was in prison and had terminated his instructions to Mr Clarke. We grant leave to appeal out of time.

The ground of appeal

[5] Mr Rangihuna alleges counsel incompetence in three areas:

• failure to prepare properly for the trial;
• failure to advise him properly of his right to give evidence; and
• failure to call defence witnesses that he had asked to be called.

Legal principles

[6] The approach to be taken to an appeal on the basis of counsel incompetence has been settled by the Supreme Court in R v Sungsuwan [2006] 1 NZLR 730 (SC) at [70]:

[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.

Preparation

[7] Both the appellant and trial counsel swore affidavits and gave evidence in relation to the issues.
[8] Mr Rangihuna says he provided counsel Mr Clarke with “considerable documentation” and instructions but in his opinion, Mr Clarke failed to talk to him sufficiently about the case or, in his words, “to come up to speed with it” during the telephone attendances and meetings Mr Clarke had with him. He supports his complaint that counsel was not prepared by referring to the fact that during the course of the trial Mr Clarke asked him if he had questions for witnesses.
[9] Mr Clarke confirmed that this was a legal services brief that he took over from the appellant’s previous counsel. He received and read the material provided to him by that counsel. He read the disclosure material provided by the police and the Crown and sent copies to the appellant. He also consulted with a senior litigation partner in his firm about the case. Mr Clarke was initially engaged in relation to a number of other charges, including one of trespass that was of particular interest to the appellant. Mr Clarke had several telephone discussions with the appellant, at least five and perhaps more. Mr Clarke also saw the appellant at call-overs in the District Court. The telephone discussions in particular were of some length. Mr Clarke said it was difficult to keep the appellant focused on the charges the subject of this appeal. Mr Clarke sought and obtained funding to travel to the prison to meet with the appellant on one occasion to prepare for trial. He said that was a long meeting of one, possibly two hours (the appellant thought 15 minutes or a half-hour). Mr Clarke had received the appellant’s 12-page summary about the offending before he met the appellant at the prison.
[10] When the appellant was brought to Gisborne for trial Mr Clarke also attended him before the trial started. Apart from discussing the trial process Mr Clarke again confirmed the defence approach agreed at the prison, which was to put the Crown to proof in the expectation that the complainant would not come up to brief given that he was facing a serious charge of murder by that time.
[11] We are satisfied that Mr Clarke’s attendances were sufficient for him to properly prepare and present the case on behalf of the appellant. Mr Clarke had all the relevant material including the police disclosure and the appellant’s written version of events. Mr Clarke discussed the case with the appellant on a number of occasions, including in person at the prison. We accept Mr Clarke’s estimate of the length of the attendance at that time as he had gone to the trouble of getting a grant for the meeting and had a lot to discuss with Mr Rangihuna. Further, Mr Clarke asked the appellant whether he had questions of witnesses not because he was unprepared, but rather because he wished to confirm the appellant’s acceptance of the approach which they had previously agreed upon, that certain witnesses would not be cross-examined. Given subsequent events that was a properly cautious approach to have taken.
[12] There is nothing in the preparation point.

The appellant’s failure to give evidence

[13] Mr Snell submitted that the appellant told Mr Clarke that he wished to give evidence himself and to call witnesses but Mr Clarke failed to comply with those instructions. Counsel does not have the right to disregard instructions from his client: R v McLoughlin [1985] 1 NZLR 106 at 107. If appropriate advice is given which the client will not accept, counsel must either act on the instructions or withdraw from the case.
[14] Mr Rangihuna wanted to give evidence, both in relation to sovereignty issues and in relation to self-defence. In relation to self-defence, he also wanted to give evidence about the background to his relationship with Mr Dewes and to correct inaccuracies in his video interview. Mr Clarke counselled Mr Rangihuna not to give evidence. The issue is whether Mr Rangihuna accepted or at least acquiesced in that advice.
[15] On the first point, Mr Clarke made it clear to the appellant that if he wanted to challenge the Court’s jurisdiction and raise sovereignty issues then he was not in a position to advance those defences and would withdraw. Mr Rangihuna does not dispute that he accepted that advice.
[16] On the second point, Mr Clarke said the appellant told him that he went to Mr Dewes’ property with the intention of creating a situation that would allow him to shoot Mr Dewes. In light of that disclosure, Mr Clarke did not consider that he could properly lead evidence contrary to that in support of a defence based on self-defence. He advised Mr Rangihuna that if he wanted to give such evidence, including evidence about the background to his relationship with Mr Dewes then he would again have to withdraw as counsel.
[17] Mr Rangihuna denied telling Mr Clarke he had gone to the address of Mr Dewes with the firearm in order to create a situation in which he would be able to shoot Mr Dewes. But his own statement to the police (at 29 of the transcript) is consistent with Mr Clarke’s evidence, which we accept on this point.
[18] Mr Clarke’s approach may have been overly cautious. There may have been a basis upon which counsel could have led defence evidence in a restricted way without infringing his ethical duty to the Court. But Mr Clarke did clearly set out the options for Mr Rangihuna. Mr Rangihuna knew that if he wanted to give evidence, then Mr Clarke would withdraw and Mr Rangihuna would need fresh counsel. Mr Rangihuna accepted that position. He did not pursue the issue of giving evidence. If he had Mr Clarke would have withdrawn. Mr Rangihuna accepted Mr Clarke’s approach to the defence, which was to put the Crown to proof and in particular to challenge the complainant, Mr Dewes in the expectation he would not be a good witness for the Crown. That defence strategy was agreed at the prison. Mr Clarke’s evidence was that the matter was not raised again. He was not seriously challenged about that.
[19] In cross-examination, Mr Rangihuna denied that Mr Clarke had, prior to trial, discussed whether Mr Rangihuna would be giving evidence. We reject that evidence. It is contrary both to Mr Clarke’s evidence and also to Mr Rangihuna’s own evidence in his affidavit where, in the context of discussion with Mr Clarke at the prison, he said he wanted to give evidence.
[20] During the course of the trial Mr Clarke again discussed the issue of Mr Rangihuna giving evidence. His advice remained the same. He adopted the accepted practice of obtaining the appellant’s written instructions to confirm the decision not to give evidence. We agree that the acknowledgement focussed on the issue of sovereignty matters but importantly it contained an acknowledgement that the appellant was entitled to give evidence but that he had instructed his lawyer he would not be giving evidence.
[21] The evidence and the logic of the sequence of events satisfies us that the appellant accepted counsel’s advice not to give evidence and the matters he now seeks to raise are with hindsight and following conviction. Where an accused has acquiesced in counsel’s advice then, as this Court said in R v Pointon [1985] 1 NZLR 109 at 114:

This Court has to be on guard against any tendency of accused persons who have been properly and deservedly convicted to put the result down, not to the crime committed, but to the incompetence of counsel. An accused who has acquiesced in his counsel’s advice not to go into the witness box himself or not to call other witnesses will usually have great difficulty in showing any miscarriage of justice on that account. ....

The failure to call witnesses

[22] Mr Rangihuna says that he had told both his initial counsel and also Mr Clarke about people who were associated with the alleged offending and who could give background evidence as to his motivation for doing what he did. Mr Rangihuna says in his affidavit that counsel was given “clear and unequivocal” instructions to call these witnesses.
[23] Mr Snell submitted that Mr Clarke was obliged to call the witnesses as the appellant had instructed him that he wished to call them: McLoughlin. But the case of McLoughlin can be distinguished. In that case counsel considered that it was not in the accused’s interests to call the witnesses. He sought the accused’s approval to the decision not to call the proposed witnesses. The accused refused to accept counsel’s advice. Despite that clear refusal counsel acted contrary to the accused’s instructions and conducted the case as he considered best.
[24] In this case, Mr Clarke says, (correctly), that he considered there was no basis for self-defence. He said the evidence could only have been relevant and of assistance had there been a basis for that and as “the appellant appeared to have accepted my advice regarding the case” namely that Mr Rangihuna would not give evidence in support of self-defence, he did not contact the witnesses. This is not a case of counsel proceeding with the trial contrary to the accused’s instructions. We accept Mr Clarke’s evidence that at the prison the appellant accepted his advice that he could not pursue self-defence and as a consequence the witnesses were not relevant. The witnesses could not have given any evidence about the incident itself as they were not present.

Summary

[25] The appeal is determined against the appellant on the evidence. But even having regard to the principles in Sungsuwan, this is not a case where it could be suggested that justice has miscarried because the appellant did not give evidence. The advice Mr Clarke gave, that Mr Rangihuna should not give evidence was undoubtedly the correct advice, even if given under a misapprehension. There is no risk that Mr Rangihuna’s failure to give evidence would have adversely affected the outcome from his point of view. To the contrary, there would have been considerable risks for the appellant if he gave evidence and was exposed to cross-examination as was demonstrated before us. There can be no concern for the safety of the verdict in this case.

Further material

[26] Following the hearing, Mr Rangihuna wrote to the Court enclosing a copy of his letter to Mr Snell of 19 October and six pages of notes to this Court. The material adds nothing of substance. There is no need to invite the Crown to respond.

Result

[27] The appeal is dismissed.

Solicitors:
Crown Solicitors, Auckland