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Noble v R [2011] NZCA 215 (24 May 2011)

Last Updated: 2 June 2011


IN THE COURT OF APPEAL OF NEW ZEALAND

BETWEEN DION JOSEPH NOBLE
Appellant

AND THE QUEEN
Respondent

Hearing: 2 May 2011

Court: Wild, Venning and Courtney JJ

Counsel: M A Edgar for Appellant
C J Lange for Respondent

Judgment: 24 May 2011 at 11.30 am

JUDGMENT OF THE COURT


The appeal is dismissed.


REASONS OF THE COURT
(Given by Wild J)

Introduction

[1] This is an appeal against conviction. Following a second trial (the first was aborted) in the District Court at Manukau in October 2009, the jury found Mr Noble guilty on 14 of the 23 counts in the indictment, and not guilty on the other nine. All the charges alleged either assaults, some with a weapon, or wilful ill treatment of a child. Judge Wade convicted Mr Noble and, on 10 December 2009, sentenced him to three and a half years imprisonment.
[2] Mr Noble’s appeal, filed on the day he was sentenced, has had a chequered history. The grounds set out in his notice of appeal were directed to amendments to the indictment, an insufficiency of evidence to support some of the guilty verdicts, and errors in Judge Wade’s summing up, in particular the question trail he provided to the jury.
[3] By the time the appeal came on for hearing before this Court in Christchurch on 20 October 2010, the grounds had changed altogether. The new grounds alleged trial counsel incompetence, in five respects. There was a related application to call further evidence from the appellant and from four other witnesses.
[4] Just prior to the appeal coming on for hearing Mr Edgar, who was counsel for Mr Noble, learned that three of the Crown witnesses at Mr Noble’s trial had recanted, or were prepared to recant, their evidence. These witnesses were three of the four children Mr Noble had been convicted of assaulting and wilfully ill treating. The Court considered it had no alternative but to vacate the fixture and recorded this in a minute dated 29 October. In that minute the Court indicated that it was minded to appoint Mr Dacre as counsel to assist the Court by interviewing the three witnesses who were said to have recanted, and reporting to the Court. The Court confirmed Mr Dacre’s appointment under s 389 of the Crimes Act 1961 in a further minute dated 10 November 2010.
[5] Mr Dacre reported to the Court on 26 April 2011. In the face of Mr Dacre’s report, Mr Edgar advised that a “recantation of evidence” ground of appeal would not be pursued, and he formally abandoned it at the start of the hearing on 2 May. Mr Edgar then advanced this appeal solely on the basis of the incompetence of trial counsel, Mr Faleauto. He contended Mr Faleauto had been incompetent in:
[6] The factual background to this appeal emerges sufficiently when we deal with the severance ground of appeal, to which we now turn.

Not applying for severance

[7] From about 2001 Mr Noble had been in a relationship with Ms Beryl Komene. They had two children together. Ms Komene had five children from a previous relationship: Jordan, Javarne, Maui, Henare and Te Atarangi.
[8] Mr Noble was first tried on an indictment containing 11 counts. In summary these counts alleged:
[9] Mr Noble’s first trial was aborted for two reasons. One has no present relevance, but the other was that evidence of further assaults by Mr Noble on his step-children emerged in the course of the complainants’ evidence.
[10] Subsequently, further charges were laid against Mr Noble. There were two new charges of assaulting Javarne using new and different weapons and a new charge of assaulting Jordan using a new and different weapon. These three new charges involving Javarne and Jordan were all representative charges spanning the period January 2003 to June 2007.
[11] Additionally, there were five charges involving Henare, four of assaulting him, including with different weapons, and one of wilfully ill treating Henare. All four assault charges were representative charges. All five charges spanned the period January 2003 to June 2007. There were also four new charges involving Maui, three of assaulting him, including with different weapons, and one of wilfully ill treating him. Again, the assault charges were representative charges and all the charges spanned the period January 2003 to June 2007.
[12] Mr Faleauto’s evidence before us was that, on Mr Noble’s instructions, he did not oppose the Crown’s application to file a fresh indictment containing all 23 counts. Mr Faleauto’s evidence was that Mr Noble wanted to “fight the lot and get it over with in one go”. Mr Faleauto said that accorded with his own view and advice to Mr Noble.
[13] Mr Edgar cross-examined Mr Faleauto at some length about the possibility of severance. First, Mr Faleauto accepted that Judge McAuslan had raised the possibility of separate trials during a callover of the 23 charges after the first trial had been aborted. Mr Faleauto also accepted that he had not gone into great detail in considering the possibility of severance, and in particular had not considered whether the charges were linked in terms of time and place. Rather, the gist of Mr Faleauto’s evidence was that severance was not pursued because all concerned preferred a single (second) trial.
[14] Mr Edgar accepted this first argument - that Mr Faleauto was incompetent in not seeking severance - was predicated on severance being a real possibility. We are satisfied it was not. The criteria for severance of counts pursuant to s 340 of the Crimes Act 1961 are now well established.[1] All 23 counts in the amended and enlarged indictment charged similar offences allegedly committed over the same time period on children and a woman living in the same household. The weapons allegedly used in assaulting the children were similar. The children had witnessed the alleged assaults on each other. Significantly, Judge Wade informed counsel before summing up that what he termed an “internal propensity” direction was appropriate, and he gave this when summing up to the jury.[2] We cannot see how severance would have been “conducive to the ends of justice”.[3] We therefore cannot conceive of a court severing the 23 counts.
[15] Even if some of the counts had been severed and tried separately, convictions at the first trial would inevitably have led to an application by the Crown to call propensity evidence at the second trial. Again, it is difficult indeed to see how such an application could have been successfully resisted. If severance was never a realistic possibility, there can be no question of a miscarriage of justice resulting from Mr Noble being tried on all 23 counts together. No finding as to whether Mr Faleauto acted in accordance with, or contrary to, his instructions in not seeking severance is required. This first basis for alleging trial counsel incompetence fails and we dismiss it.
[16] We have not overlooked Mr Lange’s submission that Mr Edgar’s focus on severance under s 340 was misconceived, and that the proper way of challenging the indictment was under s 345 of the Crimes Act. Section 345(1) requires that counts in an indictment be “founded on the evidence disclosed in any depositions taken”. That was obviously not the case in respect of the new counts in the second indictment here, or certainly not those relating to Henare and Maui. But the procedurally similar situation dealt with by this Court in R v De Bruin deals with this point.[4] Briefly, s 345 was effectively spent when the first trial was aborted. Section 345D then covered the situation. It contains no requirement, express or implicit, that added charges be founded on evidence disclosed in the depositions. Rather, the sole criterion is that “it appears to the Trial Judge that the filing of an amended indictment would be conducive to the ends of justice”.

Not obtaining instructions or formulating a defence strategy

[17] The nub of the allegation of a failure to obtain instructions was that Mr Faleauto had not prepared a full brief of Mr Noble’s evidence, responding to the 23 charges. Mr Faleauto accepted he did not do that. He deposed that he had taken Mr Noble through the summaries of facts, making notes of Mr Noble’s response to each of the complainants’ allegations.
[18] That way of doing things does not indicate incompetence. Indeed, it may have provided a more workable basis for cross-examination of the complainants. A firm grasp of the defence case was what Mr Faleauto needed, and our perusal of the trial record satisfies us that Mr Faleauto had that.
[19] That leads to the second aspect of this ground – the allegation that Mr Faleauto failed to formulate a defence strategy. These were the key features of Mr Noble’s defence, as Mr Edgar outlined it to us:
[20] All these points were advanced in appropriate detail, in Mr Faleauto’s cross-examination of the children and in his opening and closing addresses to the jury. This is sufficiently demonstrated by the following passages in Judge Wade’s summing up to the jury:

[35] Now the defence of course here is that the only physical acts on the children were occasionally slaps to the face, the bottom, or the legs, and that all the other allegations which are punching, using a closed fist, head banging of the child’s head against the wall, and beatings with various weapons such as vacuum cleaner pipes, pool cues, belts et cetera, never happened.

...

[56] ... And the defence case is that the most accused ever did by way of force to the children was an occasional smack and then for good reason, such as their swearing at their mother and matters of that sort.

[57] This says the defence was a classic dysfunctional family with the children experiencing abuse from Beryl’s earlier partner, and from Beryl herself. So says the defence, Ms Nelson may have been quite right to conclude that these were children at risk, but her error was in assuming it was Mr Noble who was the source of that risk, rather than perhaps Beryl or Beryl’s first partner.

[58] Jordan in particular, says the defence, had numerous anger problems which made him difficult to control at least by his mother. The defence contrasts the children’s evidence of weapons being used on an almost daily basis with the adults, because although they criticised the accused never spoke of seeing such weapons.

[59] You were referred by Mr Faleauto to Mr Noble’s police interview and the defence say put that into context. Mr Noble and Beryl had recently separated and the accused may have thought, suggest the defence, that alcohol and anger played their part in the separation and he took responsibility for it even though it may not have been true. And the defence say the accused was someone who is prepared to sacrifice part of his own life and in particular time with his partner, so that the children could stay with her.

[60] If weapons were regularly used, says the defence, how come first of all no adults saw them, and how come there has been no medical evidence put before you or reports of injuries of the type you would expect to see were weapons of the kind described being used. The only photographs of injuries are of course those that Beryl admitted causing, and the defence case is that these children had been coached into what to say. And once the videos had been of course the defence point out that what happened when we get to court is that not only do you as the jury get to see the video, but the child gets to see the video as well when its played so that the damage is then done and all the child needs to do is to say yes those things happened when asked to complete the Crown case. And once they, what I might describe as a lying video has been made, says the defence, its very difficult for anyone, not least a child, to undo it.

[21] The Judge then spent some time summarising points made by the defence before wrapping up his summary of the defence case in this way:

[65] Mr Faleauto reminded you how the – Irene had retracted her evidence completely and dramatically by saying she was just repeating what others had said to her, and thus says the defence confirming that pressure has been on by various members of the family to do the accused down. The defence describe the allegations of the children being put to bed in the middle of the afternoon without food is nonsense. The defence say that Mr Noble was a good caregiver, taking them to rugby matches, teaching them diving, and matters of that sort. And the defence say the children’s account simply don’t mesh, and Mr Faleauto you will remember then went on to again to perform the same exercise that Mr Webby did, and refer you to various references in the trial transcript. And the defence concluded by suggestion that at the end of the day you should be filled with doubt and of course he ended as he began by reminding you quite properly it is for the prosecution to prove guilt, not for the accused to prove innocence.

[22] Perusal of the trial record does not support the allegation that Mr Faleauto failed to formulate and advance a defence strategy. Neither leg of this second ground is made out.

Not adequately advising Mr Noble about his right to give evidence and preventing him from doing so

[23] In the affidavit he swore on 19 August 2010 in support of his appeal, Mr Noble deposed:

1.47. Ted Faleauto said he had looked through my DVD interview and was satisfied with my response and told me that he would not need anything further from me. Ted Faleauto was worried that I would get emotional while giving evidence. He told me that if I got emotional and got wound up by the Crown, this Judge would be my sentencing judge and would hammer me at sentence. I was scared and didn’t know better so I went with it.

(Emphasis added.)

[24] So there is a concession by Mr Noble that he accepted Mr Faleauto’s advice not to give evidence. This accorded with Mr Faleauto’s evidence before us. He told us he knew Mr Noble wanted to give evidence, but considered that the decision about that needed to be made at the end of the Crown case. Mr Faleauto deposed that he considered Mr Noble had acquitted himself well in his videotaped interview by the police and that the defence case would not be advanced if Mr Noble gave evidence. He so advised him, and Mr Noble accepted his advice.
[25] Thus, on Mr Noble’s own evidence, this ground is not made out.
[26] Relevant to this ground, Mr Edgar submitted that it was necessary to call Mr Noble, because his statements to the police responded only to the complaints that subsequently formed the 11 counts in the original indictment. As we have summarised them in [8] above, these counts alleged assaults only against Javarne, Jordan and Beryl Komene.
[27] As Mr Lange pointed out, Mr Noble’s statements to the police dealt with all four children, not just Javarne and Jordan. For example, when Detective Higson interviewed Mr Jordan on 29 September 2005 at the family home in Mangere East, he noted this answer from Mr Noble:[5]

He [Mr Noble] said that he had only ever used a flat hand to smack the kids. That he had slapped each of the four children on more than one occasion. That he had never used any objects or weapons. That he had never broken a pool cue when hitting the children. That two of the boys had been play fighting with a pool cue and broke the pool cue on each other on one occasion. That he used a raised voice to tell the children off, and that he held a belt and/or jug cord while telling them off and he explained to them that he’d been hit with those things when he was a kid and that they were luckier that he didn’t use them on them. He said that he did not intentionally threaten the kids with the belt or jug cord.

[28] And there are these exchanges in the videotaped interview of Mr Noble conducted by Detective Chaplow at the Manukau Police Station on 16 November 2007:[6]
  1. Would you smack the kids for any reason?
  2. Yes all the kids, hands, arse, except Jordan I admit I slapped Jordan once.

And this:[7]

  1. Now you’ve mentioned to me that you did smack the kids, all of the kids?
  2. Yes.
  3. Hands and arse?
  4. Yep.
  5. And that you, you smacked or slapped Jordan?
  6. Jordan.
  7. Jordan across the face once?
  8. Yes.
[29] We are satisfied that the statements Mr Noble made to the police, in particular those passages, adequately conveyed his defence that he only smacked the four children for reasonable disciplinary reasons. This ground is not made out either.

Not calling crucial evidence on behalf of the defence

[30] The defence called two witnesses. The most important witness was Beryl Komene, Mr Noble’s partner throughout the period covered by the charges. The thrust of her evidence was that she was the one who had hit the children, and that Mr Noble had not assaulted her. Ms Komene had been a Crown witness at the first (aborted) trial. The other defence witness was Ms Michaela Noble, a young woman who had lived with the family for some five or six months during the relevant period. She was Mr Noble’s niece.
[31] While no criticism was made of the calling of these two witnesses, Mr Edgar submitted that Mr Faleauto was incompetent not to call three other witnesses who were available and willing to give evidence. An affidavit from each of these prospective witnesses was filed in support of the appeal. The first witness was Mr Noble’s sister, Mrs Esther Wood. She deposed that her background was in social work and then stated this:

1.9. I have never witnessed him abusing the children either verbally or physically. Any tap on the backside or growling they got was not excessive and was reasonable in the circumstances.

1.10. I was expecting to be called as a witness due to my close relations to the appellant and his family as I surely would have noticed something if the allegations were true.

[32] Questioned about Mrs Wood, Mr Faleauto said he regarded her more as a character witness than as an eye witness. She could not counter the Crown’s eye witness evidence of assaults on the children. It was not suggested these had occurred in Mrs Wood’s presence. Mr Faleauto said he also assessed Mrs Wood as a loud and abrasive person, and was concerned that she wanted to give evidence that Mr Noble was depressed and on medication for that depression. He thought that evidence would harm rather than assist the defence case. Mr Faleauto deposed that, having spoken to Mrs Wood at Court, he had advised Mr Noble that she should not be called and he had accepted his advice.
[33] The second prospective witness was Mr William Wood. He was Mr Noble’s brother-in-law. He deposed that Mr Noble would bring Ms Komene and the children to the Woods’ home at weekends and school holidays. He had never witnessed incidents of abuse, and the children had not complained to him that Mr Noble had abused or mistreated them, although on occasions they had spent nights at the Woods’ home. In his evidence, Mr Faleauto explained that he had spoken to Mr Wood, and thought he had taken notes of what he could say. His assessment of Mr Wood was much the same as for Mrs Wood: he could not effectively counter the allegations, and was more of a ‘character’ witness. For those reasons he decided not to call him.
[34] The third prospective witness was Ms Yvonne Puti. She could give evidence that, after Henare injured his head while at her home, she had rushed him to the Accident and Emergency Department at the Otahuhu Hospital. She could also depose that the Children, Young Persons and Their Families Service had placed four of the children with her following an incident when Beryl Komene had smacked three of the children.
[35] Asked why he did not call Ms Puti, Mr Faleauto said that the Crown did not, at the second trial, call evidence about the head injuries to Henare, or suggest that they had been inflicted by Mr Noble. Thus, her evidence would have countered evidence which the Crown did not call. Mr Faleauto said Mr Noble accepted his advice not to call her.
[36] Mr Faleauto’s evidence of the explanations he gave Mr Noble for not calling these three witnesses is generally confirmed by Mr Noble in his affidavit. He deposes that he accepted Mr Faleauto’s advice not to call Mrs Esther Wood, but maintains that Mr Wood “would have been a valuable witness” and that he “was lost” when Mr Faleauto decided not to call him.[8] Similarly, he asserted that Ms Puti “was a very good witness for my character” and could have provided the jury “with valuable information about the children and could have countered their evidence”.[9]
[37] We accept Mr Lange’s submission that the evidence does not establish clear instructions to call these witnesses. Even if it did, we think Mr Lange is right in submitting that Mr Noble has failed to demonstrate that not calling these witnesses resulted in a miscarriage of justice, in the sense that there was a real risk that not calling them affected the outcome at trial.[10]
[38] This fourth ground is not made out either.

Not putting the defence case clearly to the jury

[39] What we have said in disposing of the second ground, particularly at [20] to [22] above, substantially disposes of this last ground also.
[40] In opening the defence case to the jury, after telling the jury that he would be calling Mr Noble’s partner, Ms Beryl Noble (Komene), Mr Faleauto said this:[11]

... And she will tell you, just like she told the police in 2005, he didn’t use any weapons or any implements. She was the one in 2005 who was smacking the kids and smacking them with these pool cues and that, that they said. And she’ll tell you as well that the mark that was on the child’s arm was the pool cue that she hit him with. Ladies and gentlemen she will also tell you about 2007. She will tell you as well that none of this muck slinging that the family said about all these injuries and assaults with weapons occurred in 2007. It just didn’t happen. She’ll tell you that. And she’ll also say this other stuff of the punching, the banging on walls, children being beaten, that didn’t happen either. She’ll tell you what actually happened.

[41] And then, as to discipline, Mr Faleauto added this:[12]

... But one other thing I wish to mention that we will bring in later is discipline and His Honour will explain about reasonable force used for discipline, physical discipline, which was lawful at this time, 2005 and 2007. ...

[42] In the course of closing to the jury Mr Faleauto said these two things:[13]

... The defence says, what actually happened was he used reasonable discipline, and His Honour will tell you about the old section 59, before they brought in the anti-smacking law, and it said you’re allowed to use reasonable discipline, reasonable force to discipline children. ...

...

But like I said ladies and gentlemen, the first big flaw in this case, and it’s my job to show you doubt is, if these weapon assaults happened in 2007, every day, and with every type of weapon, how come not a single adult member there saw it? I’ll tell you why. Simple. It didn’t happen. ...

[43] Those are only two passages in Mr Faleauto’s closing address to the jury. We are satisfied that the two addresses adequately conveyed to the jury what the defence was. That is reinforced by the way Judge Wade encapsulated the defence in summing up to the jury.
[44] This final ground is not established.

Result

[45] Mr Noble has not made out any of the five aspects in which he contended his trial counsel, Mr Faleauto, had been incompetent. He has fallen far short of establishing that justice miscarried at his trial, in terms of the test articulated by the Supreme Court in Sungsuwan.[14]
[46] Accordingly, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] For example, by this Court in R v W [1995] 1 NZLR 548 (CA) at 555.
[2] At [38]-[41] of his summing up.
[3] The wording in s 340(3).
[4] R v De Bruin (2003) 20 CRNZ 782 at [13]-[20].
[5] Notes of evidence at 141/22-31.

[6] Cognitive DVD interview at 3. This is part of the questions and answers that the detective had noted in his notebook when he spoke to Mr Noble at his home in Northcote earlier that morning, 16 November 2007.
[7] Cognitive DVD interview at 7.
[8] At [1.30] of Mr Noble’s affidavit.
[9] At [1.31] of Mr Noble’s affidavit.

[10] This is the test propounded by the Supreme Court in R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70].
[11] Defence opening address at 2/1-10.
[12] Defence opening address at 2/15–18.
[13] Defence closing address at 2/10-13 and at 6/9-12.
[14] At [70].

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