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Ellis v R [2013] NZCA 301 (12 July 2013)

Last Updated: 12 July 2013


IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
18 June 2013
Court:
Wild, Miller and MacKenzie JJ
Counsel:
C J Tennet for Appellant H W Ebersohn for Respondent
Judgment:


JUDGMENT OF THE COURT


The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by MacKenzie J)

Background

[1] The appellant stood trial before Judge Morris and jury in the District Court at Palmerston North in June 2012 on three charges of breach of a protection order. He was convicted on two charges and acquitted on the third. He appeals against conviction.
[2] The Crown case was that the appellant had been in a relationship with Ms R which she had terminated in January 2010. There had, during the course of the relationship, been a final protection order made, in April 2005, which had been served on the appellant. The three charges related to that order. The first count on which the appellant was convicted related to a series of text messages and phone calls between January and March 2010. The second count related to a hearing in the Palmerston North Family Court on 27 May 2010 where both the appellant and Ms R were present, at a hearing concerning the couple’s children. The Crown case was that during the course of the hearing the appellant made insulting and derogatory comments directed at Ms R.
[3] The trial commenced on 18 June 2012. The Crown case occupied the first week. The appellant gave evidence which occupied a full day, Monday 25 June. Following closings and summing up on 26 June the jury returned verdicts on 27 June. Following the verdicts the Judge convicted the appellant and ordered him to come up for sentence if called upon.[1]

The grounds of appeal

[4] The grounds of appeal, as set out by Mr Tennet in his submissions, are as follows:

Counsel error

[5] The appellant was represented at trial by Mr Hewson. At an earlier stage, Mr Becker had acted for him. The appellant initially raised allegations against both Mr Becker and Mr Hewson. At a telephone conference before Randerson J on 21 May 2013, Randerson J recorded that the appellant with the assistance of Mr Tennet was to consider whether the allegations made against Mr Becker have any relevance to the appeal.
[6] We can deal very shortly with this issue. Mr Becker had initially acted for the appellant in this matter and he appeared on some pre-trial applications. He withdrew in March 2011. By that stage the appellant had made a complaint to the Law Society about Mr Becker. Mr Ellis said that Mr Becker had acted for Ms R when the protection order was obtained in 2005. There is insufficient evidence on which we could consider Mr Becker’s position. We need not do so. The relevant question on this appeal is whether any error of counsel may have led to a miscarriage of justice. Mr Becker had ceased acting some 15 months before the trial. There is no possibility that any actions on his part may have led to a risk of a miscarriage at trial.
[7] Mr Hewson became involved as assigned counsel after Mr Becker’s withdrawal. There were difficulties between him and the appellant. One of those was that Mr Hewson was employed by Ord Legal, a point to which we return at [10] below. Mr Hewson sought and was granted leave to withdraw on 6 May 2011. Thereafter, the appellant acted in person. Mr Isac was appointed amicus. Much later, in March 2012, Mr Hewson had become aware that the appellant was having difficulty finding counsel to represent him. The trial was scheduled for June 2012. Mr Hewson had, in the meantime, had some contact with the appellant from time to time. He thought that the appellant’s view of him was more relaxed. He therefore made it known that he was prepared to act for the appellant and accept assignment for the trial, but only if the appellant was in agreement with that. This arrangement was confirmed in a minute issued by Judge Atkins QC on 30 March 2012 in [3]hese terms:3

[9] Mr Hewson has indicated that he is prepared to act. Mr Ellis has indicated that he is prepared to have Mr Hewson acting for him. They are both prepared to take that course despite the fact that Mr Hewson has represented Mr Ellis on an occasion in the past.

[10] If the appointment of Mr Hewson is confirmed it is very important that Mr Ellis make sure, as far as he is able, that the relationship with Mr Hewson remain an amicable one in which Mr Hewson is best able to assist him.

[11] Mr Ellis has been advised that this is probably the last occasion in which the appropriate authority will be prepared to assign a counsel to him and it is very likely that if one is assigned it will be noted that no further counsel will be assigned if things go wrong on this occasion.

[12] It is necessary that Mr Ellis approach matters quietly to ensure that he is in the best possible position to be defending the charges that he is facing. The matter will be put off for a trial on 18 June, as I have said, and seven days have been set aside.

[8] Mr Hewson represented the appellant from that point, through to the end of the trial.
[9] The complaints against Mr Hewson as trial counsel are as follows:

(a) Conflict of interest

[10] Mr Hewson was at the time of his assignment employed by Ord Legal, whose principal is Ms Ord. Her domestic partner is another lawyer, Mr Nisbet. The appellant says that when Mr Hewson was assigned he was not happy because of the connection with Mr Nisbet, about whom he had apparently claimed to the Law Society over an unrelated matter. Mr Nisbet had also acted for the complainant in litigation which the appellant asserts is relevant to this case, as we later discuss. Mr Hewson in his affidavit says that his employment by Ord Legal was one of the difficulties between him and the appellant which led to his initial withdrawal from the case in May 2011. The appellant’s objection was not pursued when Mr Hewson was re-engaged and he agreed to have Mr Hewson act for him, as recorded in the minute of 30 March 2012.
[11] We are satisfied that the circumstances did not give rise to a conflict of interest on the part of Mr Hewson, or Ord Legal. There is no substance to this ground of challenge.

(b) Preparing too little too late

[12] In his affidavit in support of the appeal, the appellant says that after Mr Hewson was appointed in April 2012, he did not have any meetings with him until the Friday before trial, 15 June. He says that he tried to show Mr Hewson a number of documents and to explain matters which he considered important and also tried to talk about witnesses he wanted to call. Mr Hewson “didn’t really want to hear about it”, and suggested that the case would be adjourned.
[13] Mr Hewson in his affidavit in response sets out the steps which he took to prepare. Mr Hewson gave evidence before us and was cross-examined. He advised the appellant that there was little point in detailed discussions in trial preparation until all disclosure was made available and he had an opportunity to consider that. He worked with the Court and Mr Isac to reconstruct files. After they were available and he was able to assess the disclosure he made a number of attempts to schedule appointments with the appellant. On at least two occasions the appellant advised that he was busy with other court commitments and unable to meet. They met on Friday 1 June, not Friday 15 June. Mr Hewson went to the appellant’s home at around 1 pm. They spent the afternoon discussing the case and going through the materials. He was able to form the view that the trial issues would be the validity of the protection order made in 2005, and whether the appellant believed that any protection order may have been discharged. Mr Hewson undertook extensive preparation in the two weeks then remaining before the commencement of the trial.
[14] We accept Mr Hewson’s evidence. His evidence shows that he conscientiously and diligently prepared for trial. There is no basis for the proposition that Mr Hewson was ill-prepared for the trial.

(c) Rudeness

[15] The appellant says in his affidavit that Mr Hewson was rude to him and about him in front of the jury and he remembers Mr Hewson swearing at him. Mr Hewson was not interested in anything the appellant had to say. He did not come to see him in the evenings or in the weekend during the trial. There is a related complaint, made in Mr Tennet’s submissions but not referred to in the affidavit, that the appellant believes that he was told during the trial that he would have to conduct the case from a small room if he elected to represent himself.
[16] Mr Hewson acknowledges that in his closing to the jury he made no excuses for the appellant’s conduct in the witness box or in the text messages which were in evidence. The appellant’s decision to give evidence was taken against his advice. Mr Hewson formed the view that the appellant’s conduct while giving evidence was likely to have made a most unfavourable impression on the jury. Mr Hewson considered that to retain credibility and to refocus the jury on the essential issues, the appellant’s conduct during the trial needed to be squarely confronted and the jury urged to put it to one side. Mr Hewson regrets any offence taken by the appellant as a result of that judgement call which he made.
[17] We consider that Mr Hewson’s judgement call that it was necessary to confront with the jury the impression which the appellant must have made upon the jury during the course of his evidence was fully justified. The notes of evidence show that the appellant insisted upon raising matters which he may have considered relevant, but which on any objective view of the matter were not relevant and which would not have assisted his case. Our reading of the notes of evidence leads us to the same view as that formed by Mr Hewson, that the appellant must have made a most unfavourable impression on the jury. Mr Hewson’s assessment that it was necessary to try and neutralise that impression was entirely appropriate. His actions in doing so were an entirely appropriate professional response in the conduct of the appellant’s case. Counsel’s duty to a client can involve giving advice and making submissions that are not what the client may wish to hear. The need for counsel to bring objectivity to bear on the case is an important aspect of counsel’s role. There is no risk that Mr Hewson’s alleged rudeness in the course of his address to the jury, or in other conduct in front of the jury, may have created a more unfavourable impression of the appellant than he himself had created.
[18] There is no evidential support for the proposition that the appellant was told that he would have to conduct the case from a small room if he represented himself. The inherent improbability that such a statement was made means that clear evidence would be required.
[19] For these reasons, there can be no concern that Mr Hewson’s conduct towards the appellant during the trial, or any remarks which he made about the appellant to the jury, may have created a risk of a miscarriage of justice.

(d) Not putting matters carefully

[20] In his affidavit, the appellant refers extensively to a case which had been brought by the complainant against a police officer seeking damages for alleged breach of a fiduciary duty owed by the officer to the complainant. That case was heard in the District Court at Wellington on 22 March 2010 and judgment was delivered on 27 April 2010. It is clear that the appellant considered that matter important to his defence. However, objectively considered and having regard to the issues at his trial, that case had little or no relevance to his defence.
[21] As Mr Hewson says in his affidavit, the defence at the trial was three-fold:
[22] The litigation between the complainant and the police officer had no possible relevance to any of those issues. Mr Hewson was right to try and limit the extent to which the appellant sought to introduce irrelevant material before the jury. There is no substance in this ground of appeal.

(e) Failure to call witnesses

[23] The appellant says that he wanted a number of witnesses called. Some of these related to the District Court case dealt with above. Mr Hewson was concerned about the relevance of that evidence. He took steps to address with the trial Judge the admissibility of the evidence which the proposed witnesses could give. Judge Morris issued a minute on the first day of the trial. She described the matters which the appellant wished to raise in these terms:[4]

[1] Mr Ellis has a number of grievances about what has occurred to him in the past and they involve allegations of conduct with the complainant with a detective, conduct with other police officer, CYFS, concerns about the Court and Judges and all of that in relation to the impact on his children.

[2] Overall Mr Ellis says there is conspiracies between complainants, agencies, institutions, such that these allegations are yet another example of that and in that way is relevant to this trial.

[3] Now I will explain in full in a minute why I adopted the procedure that I did this morning but I indicate my views at this stage as to admissibility and relevance as it may be of assistance to all.

[24] The Judge went on in that minute to give some detailed rulings as to relevance which it is unnecessary for us to discuss. In a separate minute, the Judge explained her reasons for taking that course. She said:[5]

[1] I indicated in my minute number 2 that I would outline in more detail the reason for the procedure that we adopted yesterday morning.

[2] Mr Ellis is on trial for three breaches of protection order. Mr Ellis has a number of grievances about what has occurred in the past between the complainant, Ms [R], the police, CYFS and his brother particularly. The extent of those grievances and the concern and anger surrounding them is sometimes or has been in the past sometimes overwhelming for Mr Ellis.

[3] In the context of a jury trial, I considered it may be helpful to adopt what would otherwise be an unorthodox approach. I considered it may be beneficial for Mr Ellis to have the opportunity to tell me about those past problems and grievances that he has had. That exercise in itself I considered may be beneficial prior to commencing with the jury proper but I considered it may also be helpful to hear counsel’s submissions on what is relevant in the context of this trial. Mr Hewson for Mr Ellis confirmed that would assist in terms of taking instructions and asked that the indications be transcribed immediately. For that reason I have kept that without this fuller text and I just record this to be included in that minute.

[4] All counsel, including the amicus, have considered there was some benefit in that approach and I also record that insofar as the indications I gave as to admissibility, there was no dispute with counsel as to those areas. I am conscious that in part I was asking the defence to disclose its hand, though issues have already been outlined at callover. I have also heard references from Mr Ellis in the callover to those issues. Mr Ellis has wanted the opportunity to raise those directly.

[25] It is clear from the evidence that there was a significant difference of view between Mr Hewson and the appellant as to the relevance of the witnesses whom the appellant wished to call. The step which Mr Hewson took of seeking guidance from the trial Judge as to the relevance of that evidence was entirely appropriate and must have significantly assisted the proper conduct of the trial, and the retention of focus on the relevant issues. There is no valid ground for criticism of the steps taken by Mr Hewson in relation to the witnesses whom the appellant wished to call. There is no possible risk of a miscarriage of justice from the failure to call any of the proposed witnesses.

(f) Overall assessment on the counsel error ground of appeal

[26] The ultimate question, in a case where error or irregularity on the part of trial counsel is raised, is whether justice has miscarried.[6] The Court must consider whether there is a real risk that any error on the part of counsel may have affected the outcome. There is not the slightest risk of that in this case. The trial Judge expressly recorded her view that “Mr Hewson is doing a good job”[7] and that “Mr Hewson has done a very good job”.[8] The Judge’s views are confirmed by the impression which we formed from hearing Mr Hewson being cross-examined, and from our reading of the case on appeal. It is quite clear that Mr Hewson handled a difficult brief diligently, carefully and skilfully. The ground of appeal based on counsel error must fail.

The summing up

[27] Four substantial misdirections are alleged.

(a) Burden of proof

[28] The first relates to the Judge’s direction on the burden of proof. The Judge said:[9]

[14] So standard. How much proof do you need, how much proof is required? The Crown must prove the offence, the breach of protection order, beyond reasonable doubt. That term simply means you must be sure, you must be sure of guilt. If you are not sure then you must acquit on the charges you are considering. It is not enough that you are suspicious, it is not enough on the aspects of the Crown have to prove that it is more probable than not that the events occurred. You must be sure of the matter the Crown must prove. If you are sure of the matters the Crown must prove then you would turn to the defence and as I say I will go through that in a moment.

[29] Mr Tennet submits that this does not contain all of the elements required by the decision of this Court in R v Wanhalla.[10]
[30] Mr Tennet submits that the direction recommended in Wanhalla should have been read out in its entirety to the jury, and the failure to do that meant that the appellant was deprived of a fair trial.
[31] The terms of the direction suggested in Wanhalla are not a script which must be followed without variation. The concept of proof beyond reasonable doubt may be explained in terms which do not follow the recommended wording. The Judge’s direction here did explain the concept of proof beyond reasonable doubt in terms which are consistent with the guidance given by this Court in Wanhalla. There was no misdirection as asserted.

(b) No tripartite direction

[32] The next alleged misdirection is that the Judge did not give a tripartite direction about the appellant’s evidence.
[33] The Judge said:[11]

[16] Well what of the fact that the defence called evidence, that Mr Ellis gave evidence? As I said that does not alter the fact that the Crown must prove the breach of the protection order beyond reasonable doubt, it is simply more evidence that you put into the mix in determining if the Crown has proved that breach. If you are sure of the offence, the breach has been proved, having heard all the evidence including the defence evidence, then you would find Mr Ellis guilty subject to the defence I will talk to you about in a moment. If taking into account all the evidence you accept, from both the Crown case and Mr Ellis’ evidence, you are left unsure then you must acquit.

[34] Again, the form in which the direction about defence evidence is commonly given is not a script which must be followed and not departed from. The Judge’s task is to explain the possible effect of defence evidence in a way which ensures that there is no risk of inappropriate reasoning on the part of the jury.[12] As Mr Ebersohn for the Crown submits, a question trail can be an aid to reducing the risk of impermissible reasoning, in that working through a question trail would counter any tendency of the jury to leap to a conclusion of guilt if they rejected defence evidence. We consider that the Judge’s direction, in the context of the summing up as a whole and of the question trail, was appropriate to ensure that there was no risk of impermissible reasoning such as might lead to a miscarriage of justice. There was no misdirection as asserted.

(c) Inferences

[35] The third claimed misdirection is as to inferences. The first complaint is that the Judge described inferences as “... not guesses, they are logical reasonable conclusions from what you find proved.”[13] Mr Tennet submits that the word “fair” should also have been used. The second complaint is that it would have been of assistance for the Judge to identify where inferences need to be drawn, such as what inference there might be that the appellant knew that there was a protection order in force. He submits that would have been preferable to using an example not drawn from the facts of the case, as the Judge did here.
[36] We are satisfied that neither of these complaints gives rise to a misdirection. While the phrase “fair, logical and reasonable conclusions” is commonly used to describe inferences, there is again no script which must be followed. The Judge’s task is to explain the concept to the jury, and the focus must be on whether there was an adequate explanation, rather than on the precise words used in giving the explanation. While judgments of this Court encourage the use of examples drawn from the facts of the particular case in describing inferences, it is still not uncommon for judges to use examples not drawn from the facts.

(d) No propensity direction

[37] The fourth alleged misdirection is that no propensity direction was given in respect of the appellant’s past behaviour to the complainant. That past behaviour, which the Crown put forward as a campaign of intimidation and harassment, was relied on to support the proposition that the appellant’s comments in the Family Court were intended to harass or intimidate and to establish that the appellant had no defence of a reasonable excuse.
[38] We are satisfied that no propensity direction was needed. We consider that there is force in Mr Ebersohn’s submission that the evidence was not propensity evidence. The prior conduct of intimidation and harassment relied upon was directly relevant to the other two counts of breach of protection order which were properly tried at the same time as the count relating to the incident in the Family Court. We accept Mr Ebersohn’s submission that there was no need for a propensity warning. The jury was instructed to consider each charge separately, and to avoid prejudice. Nothing more was required in the context of this case.

Unreasonable verdict

[39] This ground of appeal relates to the count concerning the exchange in the Family Court. That count alleged that comments made by the appellant in the course of the hearing constituted a breach of the protection order. The essence of this ground of appeal is that, because the statements were uttered in Court, public policy requires that the comments not be held to constitute a breach of the order. The submission is that the appropriate remedy in respect of any improper conduct in the courtroom is the exercise of the Court’s power to punish for contempt in the face of the Court. Mr Tennet further submits that rights of access to justice and freedom of speech under the New Zealand Bill of Rights Act 1990 are engaged, and require that the right to speak within Court (subject to the control by the Court under the rules governing contempt of Court) be protected so that any comment made in Court cannot constitute a breach of the protection order, or alternatively, that the rights of access to justice and freedom of speech constitute a reasonable excuse. Mr Tennet refers also to the absolute privilege afforded under the law of defamation to statements made in Court.
[40] We are satisfied that no public policy considerations, or considerations of access to justice or freedom of speech, are engaged in respect of the appellant’s conduct and statements in the Family Court. It is important that the ability of parties to make submissions and give evidence without fear of adverse consequences be protected. There is however no public policy reason to extend that protection to wholly gratuitous outbursts during the course of a Court hearing. The appellant’s comments were not proper comments or submissions to the Judge which might fall within the scope of any public policy considerations of the sort relied upon. It is inherent in the jury’s verdict that the statements by the appellant were directed to the complainant, not the Judge.
[41] Mr Tennet further submits that it is a relevant consideration that the appellant was at the time under detention, in the custody of prison guards. The appellant was at the time of the Family Court hearing in Manawatu Prison. He was taken to Court under escort. That consideration does not confer on the appellant a licence to make comments which would not be permissible if he had not been in custody.
[42] The ground of appeal based on unreasonable verdict must also fail.

Result

[43] The appeal is dismissed.






Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Ellis DC Palmerston North CRI-2010-031-162, 27 June 2012.

[2] R v Wanhalla [2007] 2 NZLR 573 (CA).

[3] R v Ellis DC Palmerston North CRI-2010-031-162, 30 March 2012 (Ruling).

[4] R v Ellis DC Palmerston North CRI-2010-031-162, 18 June 2012 (Minute 1).

[5] R v Ellis DC Palmerston North CRI-2010-031-162, 19 June 2012 (Minute 4).

[6] Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [70].

[7] R v Ellis DC Palmerston North CRI-2010-031-000162, 19 June 2012 (Minute 2) at [6].

[8] R v Ellis DC Palmerston North CRI-2010-031-000162, 20 June 2012 (Minute 8) at [10].

[9] R v Ellis DC Palmerston North CRI-2010-031-000162 (Summing Up).

[10] R v Wanhalla, above n 2, at [49].

[11] R v Ellis, above n 9.

[12] R v MacDonald [2009] NZCA 428, (2009) 24 CRNZ 785 at [30].

[13] R v Ellis, above n 9, at [37].

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