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Court of Appeal of New Zealand |
Last Updated: 26 August 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
29 July 2013 |
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Court: |
Stevens, Panckhurst and Ronald Young JJ |
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Counsel: |
M J Phelps for Appellant
J M Jelas for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
The appeal against conviction, and sentence, is
dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Panckhurst J)
The appeal
[1] The appellant and her partner, Terrence Tahuri, were jointly tried and convicted.[1] Mr Tahuri was found guilty of wounding with intent to cause grievous bodily harm as the principal offender. The appellant was charged as an accessory after the fact, the Crown case being that she drove her partner away from the scene of the shooting together with a shotgun which had been used.
[2] Trial counsel represented both defendants. Mr Tahuri’s defence was mistaken identity, that eye witnesses were mistaken in identifying him as the shooter. The appellant’s defence was that she was not an accessory as Mr Tahuri was not the principal offender. However, her appeal against conviction is advanced on the basis that an alternative defence, absence of knowledge that Mr Tahuri had committed the crime, was not advanced at trial.
[3] The appellant also challenged her sentence of five months home detention as manifestly excessive. We note that Mr Tahuri’s appeal against conviction and sentence (nine and a half years imprisonment) was dismissed recently.[2]
The factual background
[4] As at 13 February 2011 the appellant and Mr Tahuri lived at 139 Aputa Street, Wairoa. Mr Tahuri was a member of, or had close links with, the local Black Power gang. Their next door neighbour at 141 Aputa Street was Moe Grant. At about 7.30 am that morning Ms Grant received a visit from her brother and three of his associates. They came from a Mongrel Mob party at which they had been drinking heavily. One of the associates was the victim, Alan Hubbard.
[5] The Crown case was that Mr Tahuri argued with Ms Grant’s brother, Theodore Ruawai, across the fence. A short time later the appellant left the property in a car, but returned after about 20 minutes. Following her return Mr Tahuri was observed in the driveway carrying a shotgun. He fired two shots in quick succession towards the neighbouring house, number 141. Mr Hubbard sustained a serious injury to his right shoulder. Numerous shot gun pellets were removed from the wound. The doctor who treated Mr Hubbard considered that the wound was consistent with a close range shot gun blast.
[6] The Crown case depended substantially upon the evidence of two eye witnesses who appeared at trial under the protection of anonymity orders. Witness A described hearing an argument involving Mr Tahuri and Mr Ruawai. Sometime later A heard gunfire and saw Mr Tahuri fire a shotgun in the direction of number 141. The witness also observed the appellant leaving her property in a red sedan, but saw no-one else in the vehicle.
[7] Witness B also heard an argument, and saw Mr Tahuri “hanging out the window” of his home yelling in the direction of number 141. The witness then heard the distinctive sound of a car leaving number 139 and returning to the address a short time later. Next, witness B saw Mr Tahuri in his driveway with a shotgun and firing two shots in the direction of number 141. Minutes later B witnessed a red and black car driven out of the driveway of number 139 by the appellant, with Mr Tahuri in the back seat.
[8] Mr Hubbard said that he was intoxicated at the time he was shot. Previously, he heard arguing between Mr Ruawai and two guys next door at number 141 who were working on a car. He said he did not see who shot him, nor any movement from the next door property after he was wounded.
[9] Another of the associates was called by the Crown, but declared hostile. His evidence shed no light on the relevant events.
[10] Ms Grant confirmed that her brother, Theodore Ruawai, argued across the fence with a male at number 139. Subsequently she heard the sound of gunfire and saw that Mr Hubbard had been wounded. She immediately telephoned the police and while on the phone saw a blue car pull up at the back door of number 139. A male and a female got into the vehicle, one into the front and one into the back seat. As they did so she heard a voice in the car say “Terrence hurry up and get in”. She thought there were three persons in the vehicle, two in the front and one in the rear, and that it was a person in the rear who made the hurry up comment.
[11] The appellant and Mr Tahuri were not immediately located by the police. On Monday 14 February 2011, however, the appellant accompanied by her mother and sister went to the Wairoa Police Station. At interview she said that she was in bed with Mr Tahuri when they heard the shots. When questioned about vehicle movements from number 139 the appellant agreed that she had briefly left the property before the shooting and that she had driven away with Mr Tahuri after the event. She stated there was no-one else at their property “that she knew of” at which point the appellant exercised her right to silence.
[12] The following day Mr Tahuri likewise presented himself at the police station. With reference to the shooting he said he was asleep at the time, and awoke as a result of the noise. When confronted with the suggestion that he was the shooter he denied this, repeated that he was asleep, and asked to speak with a lawyer.
[13] No defence evidence was called at trial.
A conflict of interest – the rival contentions
[14] The appellant contends that trial counsel, Mrs Verry, did not adequately advise the appellant of her right to separate representation and that as a consequence an alternative defence, that Ms Duncan did not have the requisite knowledge to be an accessory, was not put to the jury. It was also submitted that the summing up compounded counsel’s error, in that the trial Judge did not advert to the alternative defence either. This, counsel submitted, resulted in a miscarriage of justice requiring that the conviction be quashed.
[15] The criticism of the trial Judge is misplaced. The so-called alternative defence was not put to the jury, but there was no factual basis upon which it could have been, given the way in which the defence case had been run. Rodney Hansen J correctly directed the jury that the appellant was only guilty as an accessory if she assisted Mr Tahuri by driving him away from the scene “knowing that he had committed the crime”. However, this element was not put in issue given that the defence of both defendants was that they were in bed together at the relevant time and the identification of Mr Tahuri was, therefore, mistaken.
[16] The Crown argued that although trial counsel had not obtained the prior informed consent of the appellant to her acting for both defendants, this did not occasion a miscarriage of justice. In reality both defendants relied on the same defence. Both instructed Mrs Verry to challenge the identity of the shooter on the basis they knew who the shooter was but did not wish to become involved in the ensuing investigation. Hence, it was submitted that the suggested alternative defence was simply incompatible with the primary defence.
[17] The assessment of the competing arguments requires a focus upon two aspects. The first concerns the instructions provided to counsel in the build up to the trial. The second concerns the evidence at trial and whether it was a realistic option to run the primary defence on behalf of both defendants, and an alternative defence on behalf of Ms Duncan.
When does a conflict of interest arise?
[18] Rule 6.1 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 states:
6.1 A lawyer must not act for more than 1 client on a matter in any circumstances where there is a more than negligible risk that the lawyer may be unable to discharge the obligations owed to 1 or more of the clients.
6.1.1 Subject to the above, a lawyer may act for more than 1 party in respect of the same transaction or matter where the prior informed consent of all parties concerned is obtained.
Here, as will become apparent, the informed consent of Ms Duncan was not obtained before counsel represented both Mr Tahuri and the appellant at trial.
[19] However, this failure is only material if during the trial counsel was in fact inhibited in the discharge of her duty to defend the appellant to best advantage. In that situation a miscarriage of justice would have resulted.
[20] We adopt this statement of Lord Steyn in Mills v R on the responsibilities of trial counsel in representing more than one accused:[3]
If there is, or might be, a conflict of interest, he [counsel] must promptly advise separate representation. Any doubt must be resolved in favour of separate representation. Those duties of counsel arise as soon as he is engaged. It is, however, a continuous duty. If at any time before the trial a conflict arises, counsel must advise separate representation of the defendants. If contrary to all expectation such a position arises at trial, counsel may be obliged to seek a discharge of the jury in order to enable separate representation at a new trial. These propositions flow from the right of accused defendant to have his defence properly and effectively placed before the jury. It is an integral part of his constitutional right to a fair trial. But their Lordships add one qualification. The province of the law is practical affairs. The question is whether there is, or might be, a real risk of a conflict of interest inhibiting counsel in the discharge of his duties on behalf of one or more defendants. In a practical world wholly theoretical fanciful risks can be disregarded.
[21] We regard this statement of principle as apposite in a New Zealand context. The judgments of the Supreme Court in R v Sungsuwan in the related field of counsel misconduct are to similar effect.[4] The Court stressed three matters. First, that the statutory ground of appeal justifying intervention is that there was a miscarriage of justice. Second, that the focus must be upon the outcome of the impugned conduct in the context of the actual trial. Third, the ultimate question is whether justice has miscarried; whether there is a basis for real concern for the safety of the verdict.[5]
The instructions to counsel
[22] This aspect was the subject of evidence, and cross-examination, in this Court. The appellant swore an affidavit in which she said that she had “no knowledge of who shot Mr Hubbard – and I certainly did not know that it was Terrence”. Ms Duncan deposed that at trial her understanding was that counsel would say Terrence was not the shooter but, “more importantly”, that she had no knowledge of his involvement when she drove him away from the address after the event.
[23] Privilege having been waived, Mrs Verry swore two affidavits. In the first she said of acting for both:
... there was no conflict or disadvantage for Ms Duncan because Ms Duncan’s defence was that Terrence was not the shooter and even if the jury found Mr Tahuri was the shooter, that she did not know he was the shooter and she did not [knowingly] assist him ‘flee the scene’.
The affidavit continued that the defence theory of the case was that Mr Tahuri was not the shooter, rather that one of his brothers fired the shots. Mr Tahuri’s three brothers were patched members of the Black Power gang and one of them owned a blue car.
[24] In her second affidavit Mrs Verry described “a very frank conversation” she had with Mr Tahuri and the appellant together. She told them that if they were not involved in the shooting, but knew who the shooter was, they should talk to the police – which she would facilitate. Both clients were adamant that they did not want to do this. With regard to her instructions, Mrs Verry said:
Both had been clear to me that [they] were present in the house when the offending occurred, they heard the shots being fired, they knew who else was in the house and by deduction they could ascertain who the shooter was. The issue was solely one of identification. Their position was that Mr Tahuri was not the shooter. The case stood or fell on that fact for both of them.
This, of course, was at variance with the previous affidavit which spoke of an alternative defence available to the appellant should Mr Tahuri be the shooter, but without her knowledge.
[25] Both deponents were cross-examined. The appellant maintained that trial counsel was not instructed to advance a single defence. Questioned concerning the circumstances on 13 February 2011, the appellant confirmed that she alone left the property in the early morning and drove to a nearby service station to purchase pies. She said that on returning she went back to bed with Mr Tahuri where they remained until the shooting occurred. When leaving their address she had driven around the house, as there were driveways on both sides and it was normal practice to complete a circuit. Neither as she left, nor upon her return, did she see anyone else on the property. So far as she was aware she and Terrence were the only people present. The appellant denied telling counsel that she and Mr Tahuri knew of others in the house and that they had worked out who the shooter must have been.
[26] Mrs Verry was pressed concerning the exact details of her instructions. In particular she was questioned concerning the extract from her second affidavit at [24] above. This exchange occurred:
- So the true position is that that was the logical inference that you drew from what was not being said by Mr Tahuri and Ms Duncan?
- And the other evidence that was available from the eye witnesses next door.
Q So it’s not a matter of them giving you those instructions is it?
Ms Duncan was in our view an unsophisticated young woman, without experience of the criminal process. Mrs Verry impressed us as careful and conscientious in her dealings with Mr Tahuri and the appellant, and equally in the manner in which she conducted their defence at trial.
[27] However, arising from her affidavit and in-Court evidence two problems are evident. First, Ms Jelas rightly conceded that counsel did not obtain informed consent to her acting for both clients. Instead, the somewhat guarded instructions provided to Mrs Verry at a joint meeting led her to the conclusion that the interests of Mr Tahuri and the appellant were inseparable. They said they were together in bed at the relevant time and this suggested a common defence: that Mr Tahuri was not the shooter and that the appellant could not be an accessory.
[28] However, we are satisfied that the better course would have been to speak to the clients separately, and in the appellant’s case to point out the implications of running a single defence. Such an explanation was essential to informed consent, which, had it been given, should ideally have been recorded in writing – as Mrs Verry did in relation to other aspects of her instructions.
[29] Second, not only was there a significant change between the two affidavits sworn by counsel, but honest concessions she made in cross-examination placed a different complexion upon the nature of her instructions. The clients did not in fact say they knew of others in the house and that they could therefore deduce the identity of the shooter. In reality, Mrs Verry interpreted the limited instructions she received to arrive at this conclusion no doubt in search of the best available theory for the conduct of the defence case. She also rationalised that misguided loyalty prompted silence on the part of her clients. From there, no doubt it was a short step to the further conclusion that there was no hint of a conflict in acting for both.
Was counsel inhibited in the conduct of the appellant’s defence?
[30] At an abstract level the answer to this question must be that in acting for both Mr Tahuri and Ms Duncan counsel was inhibited, because the only defence for one was that he was not the shooter, whereas the other could have advanced a defence of absence of guilty knowledge. But, it remains to examine whether in the context of this case advancement of the alternative defence was a practical option or, put another way, whether it was but a theoretical and fanciful possibility.
[31] This brings into relief a further aspect of the Crown case to which we have not so far referred. Before she presented at the police station on the afternoon of Monday 14 February 2011, the appellant exchanged numerous text messages with her sister in Wairoa. The appellant and Mr Tahuri were in hiding outside the township. The messages included reference to police activity at Aputa Street, a “manhunt” and that it would be inadvisable for the appellant to return to town. At one point the appellant’s sister proposed that she might visit number 139, but the appellant responded “... I don’t want to drag you down with me”. A little later she sent another text “I don’t want yous involved with our mistake we done eh sis”.
[32] A later exchange concerned the appellant returning to town to see her family, in relation to which she said to her sister “... if we get caught we get caught”. In fact, the appellant did return to town some hours later, met her sister and mother and presented herself at the police station.
[33] Despite both the appellant and Mr Tahuri surrendering to the police, the vehicle which they used to leave their home address was not located. Nor was the shotgun. Aside from the common assertion that they were together in bed at the moment of the shooting, neither the appellant or Mr Tahuri explained their actions.
[34] In the circumstances can it be said that trial counsel in acting for both was inhibited in the conduct of the appellant’s defence? Upon a realistic assessment could the alternative defence have been advanced in tandem with the primary defence that Mr Tahuri was not the shooter? We are in no doubt that in light of all the evidence it is fanciful to suggest that absence of guilty knowledge on the appellant’s part could have been advanced by way of an alternative defence.
[35] The appellant’s explanation to the police, coupled with the admissions contained in the text messages to her sister, rendered the alternative defence untenable. In reaching this conclusion we do not overlook the evidence of Moe Grant concerning three people getting into a blue car and leaving number 139 soon after the shooting. This evidence, however, stands alone, and is at odds with the evidence of witnesses A and B. More importantly for present purposes, Ms Grant’s evidence was also contradicted by the appellant’s own account, namely that she and Mr Tahuri left number 139 alone in a red car.
[36] For these reasons we are satisfied that in the particular circumstances of this case the appellant could not have run the suggested alternative defence even had she been separately represented. It follows that there is no basis for concern as to the safety of the verdict. The appeal against conviction is dismissed.
The sentence appeal
[37] The sentence of five months home detention was characterised as manifestly excessive because the starting point adopted was too high and insufficient recognition was accorded mitigating features; including the appellant’s youth, previous good character and the circumstance that the appellant offended out of misguided loyalty to her partner. Rodney Hansen J adopted a starting point of 12 months imprisonment, but commuted this to five months home detention in recognition of the appellant’s youth, clean record and an acceptance that “misguided loyalty to [Mr Tahuri] ... dragged you into doing something that I accept is completely out of character”.[6]
[38] Mr Phelps submitted that a sentence of home detention is ordinarily set at half the term of imprisonment otherwise appropriate, and that accordingly mitigating factors only reduced the end term by one month (about 17 percent). This was inadequate, particularly when compared to R v Brett in which an accessory was by analogy accorded the benefit of s 71(2) of the Crimes Act 1961.[7] This subsection provides that a spouse or civil union partner cannot be prosecuted for assisting a partner to avoid arrest or prosecution. Priestley J considered it anomalous that the immunity did not extend to a de facto partner, and imposed a very lenient sentence.
[39] We consider Brett is distinguishable. Not only did the defendant plead guilty, but there was also evidence that a violent domestic background influenced Ms Brett’s conduct. Here the evidence signifies active and willing participation on the appellant’s part.
[40] Nor do we accept that the Judge’s approach can be faulted. There is no established tariff for accessory offending because so much depends upon the facts of individual cases. The crime in this instance was serious. The appellant provided prompt and effective assistance. Mr Tahuri, and the shotgun, were removed before the arrival of the police. The shotgun was not recovered. About 30 hours later, however, the appellant surrendered herself to the police. Twelve months imprisonment was an appropriate starting point.
[41] We also consider that commuting the 12 month starting point sentence to five months home detention was appropriate. This afforded proper recognition for the appellant’s youth and immaturity, and her previous good character. The trial Judge was best placed to assess the home detention term. We do not subscribe to the view that an end sentence of home detention must be calculated in the mechanical fashion for which counsel contended.
[42] For these reasons the appeal against sentence is also dismissed.
Solicitors:
Crown Law
Office, Wellington for Respondent
[1] R v Duncan [2012] NZHC 1814 [sentencing notes].
[2] Tahuri v R [2013] NZCA 254.
[3] Mills v R [1995] 1 WLR 511 at 523 (PC).
[4] R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730.
[5] At [69]–[70].
[6] Sentencing notes, above n 1, at [35].
[7] R v Brett HC Auckland CRI-2006-044-7302, 8 August 2007.
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