David v R [2013] NZCA 507 (22 October 2013)

Last Updated: 30 October 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA661/2012 [2013] NZCA 507
BETWEEN	DEVRON ERROL DAVID Appellant
AND	THE QUEEN Respondent

Hearing:	17 September 2013
Court:	Miller, Cooper and Lang JJ
Counsel:	W T Nabney for Appellant B D Tantrum for Respondent
Judgment:	22 October 2013 at 12.30 pm

JUDGMENT OF THE COURT

1. The application for an extension of time is granted.
2. The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

[1] On 21 June 2012, a jury in the District Court at Hamilton found Mr David and his partner, Ms Bunning, guilty on four charges laid under the provisions of the Misuse of Drugs Act 1975. Mr David had pleaded guilty at the beginning of the trial to a charge of being in possession of a methamphetamine pipe. On 31 August 2012, Judge Tompkins sentenced Mr David to an effective term of four years imprisonment.^[1]
[2] Mr David appeals against conviction. His notice of appeal was filed out of time. There being no objection we extend time. He contends that his trial counsel, Mr Robb, failed to adequately represent him at trial. As a result, he contends that there was a miscarriage of justice.

Background

[3] Mr David and Ms Bunning faced charges of manufacturing methamphetamine, producing the precursor substance pseudoephedrine, and having in their possession equipment and precursor substances with the intention that they be used in the manufacture of methamphetamine. All of the charges arose as a result of items found when the police executed a search warrant at Ms Bunning’s house on 13 January 2010.
[4] When the police searched Ms Bunning’s house, they found approximately five litres of toluene and numerous bottles and containers of acetone. Both those substances are precursor substances used in the manufacture of methamphetamine.
[5] The police also found equipment capable of being used for manufacturing methamphetamine. These included glass baking dishes, one of which contained traces of pseudoephedrine. A second baking dish contained methamphetamine. The police also found a coffee filter containing numerous pH indicator strips and an orange plastic funnel with white residues on it.
[6] In addition, the police found materials capable of being used for the manufacture of methamphetamine. These included drain unblocker, sodium hydroxide, caustic soda and magnesium sulphate. The police also found a plastic bottle containing a two-layered liquid. When this was analysed, it was found to contain methamphetamine.
[7] The police also found a small glass bottle sitting on top of the wardrobe in the master bedroom of the address. A solid white substance was sitting at the bottom of the bottle, and there was a layer of liquid above it. When the solid was analysed, it was found to contain methamphetamine.
[8] The police linked Mr David to Ms Bunning’s address because his wallet was found during the search. This contained his driver’s licence and other forms of identification. He had also given Ms Bunning’s address to Work and Income New Zealand (“WINZ”) as the address to which WINZ should send correspondence to him. Neighbours were also able to say they had seen Mr David coming and going from the address, as could Ms Bunning’s landlord.
[9] Mr David’s fingerprints were also found on four items located during the police search. They were found on an ashtray containing a brown residue. A cut drinking straw was sitting on the ashtray. Upon analysis the brown residue was found to contain methamphetamine. His fingerprints were also found on a tin containing acetone that the police found under the house. The acetone was also found to contain traces of pseudoephedrine. Mr David’s fingerprints were also found on a “Pure Dew” water bottle that the police found in a rubbish bag, and on the glass bottle containing methamphetamine that the police found on top of the wardrobe in the master bedroom.
[10] At trial, neither Ms Bunning nor Mr David gave evidence.

Ground of appeal

[11] Mr David filed an affidavit in support of the appeal in which he explains why he believes Mr Robb’s performance as trial counsel was inadequate. First, he suggests that he did not have adequate access to Mr Robb prior to the trial. He says that he only met Mr Robb on one occasion at his office before the trial. This was on 25 May 2012, approximately three weeks prior to the commencement of the trial on 18 June 2012. He says that during this meeting he told Mr Robb he was dissatisfied with Mr Robb’s performance to date given the fact that Mr Robb had failed to contact him. The tenor of Mr David’s affidavit is to the effect that Mr Robb had made insufficient effort to keep in contact with Mr David during the months leading up to the trial. As a result, Mr Robb was not sufficiently prepared when the trial began on 18 June 2012.
[12] Mr David says that he told Mr Robb during the meeting on 25 May 2012 that his mother was available as a witness to confirm that Mr David had been living with her during the period leading up to the police search. Mr David says that during the meeting he and Mr Robb also discussed the items on which Mr David’s fingerprints had been found. At the end of the meeting, however, Mr David says he told Mr Robb that he had no confidence in him and the meeting was terminated.
[13] Mr David says he then sought to instruct Mr Craig Tuck, a lawyer practising in Tauranga. He says that when he called Mr Tuck about two weeks after initially meeting him, he was told that Mr Tuck’s office was having trouble uplifting his file from Mr Robb. Mr David says he knew Mr Tuck would be unable to represent him if the trial proceeded on 18 June 2012, because he was engaged in another trial that day. He says he believed that arrangements would be made with the Court for the trial to be adjourned so that Mr Tuck could represent him.
[14] Mr David says that on the morning of 18 June 2012, he called Mr Tuck’s office and spoke to his secretary. She said that she had telephoned the Court in Hamilton, and that the trial was going to be adjourned because Mr Tuck was engaged in a trial in Auckland. Mr David says that he therefore understood that the trial would be adjourned that morning, and that Mr Tuck would represent him when it was subsequently held.
[15] Mr David says that he was late arriving at Court on 18 June, and this did not impress the Judge. Before he went into the courtroom he spoke to Mr Robb, who asked Mr David if he was still instructed. Mr David says he told Mr Robb that Mr Tuck would be representing him, and that the trial was going to be adjourned because Mr Tuck was in Auckland doing another case. Mr David then learned that the Judge had declined to adjourn the trial, and had directed that it would proceed that day whether or not Mr David was represented by Mr Robb. Mr David says that at that point Mr Robb advised the Judge that he would continue to represent Mr David.
[16] Mr David also complains about the manner in which Mr Robb conducted the trial. He says that Mr Robb failed to take heed of notes he received from Mr David instructing him to ask questions of witnesses, or to raise issues with the Judge. He also contends that Mr Robb did not speak to him during breaks, and that he therefore had little opportunity to seek advice during the course of the trial.
[17] Mr David says that at the conclusion of the Crown case, Mr Robb spoke to him in the holding cells. Mr Robb told him that Ms Bunning was not going to give evidence. Mr David says he had previously believed that she would be giving evidence on behalf of both herself and Mr David. Mr Robb asked whether he wanted to give evidence. Mr David says he then sought advice from Mr Robb as to whether that would be a good idea. Mr Robb told him that there was nothing that Mr David could say to the jury that had not already been said. After receiving this advice, Mr David says he elected not to give evidence. He says he now realises Mr Robb did not present any evidence to explain why his fingerprints were found on items associated with the manufacture of methamphetamine.
[18] Mr David says that if he had given evidence, he would have told the jury that he had been living in a shed at his parents’ house during the period leading up to the search of Ms Bunning’s address. All of his clothing was in that shed, along with his other personal effects.
[19] In his affidavit Mr David also provides explanations for the fact that his fingerprints were on several items that the police found at Ms Bunning’s address. He deposes:

43. ...

a. Exhibit MB04 which is shown as photograph 18 of the Crown photo booklet and is described as a 20 millilitre glass bottle approximately two-thirds full of a clear liquid PH7 with a fine white solid bottom and which was located by the police on top of a wardrobe in Ms Bunnings bedroom. I had handled that container. I used it to clean the methamphetamine that I was then purchasing which was poor quality and I used acetone to clean it up. I understand that the ESR have said that the liquid is in fact toluene but my understanding is that if the liquid were toluene, then any methamphetamine in the bottle would be dissolved into the toluene and I understand that the ESR evidence was to that effect. I was not responsible for putting the toluene in the container.

b. Exhibit X01 a pure dew 3 litre water bottle. This was said to be consistent with a methamphetamine lab. The explanation that I would have provided was that Ms Bunning and I did not use tap water for the baby’s bottle but used water purchased for that purpose.

c. Exhibit MB02 which was a glass ashtray with a pink straw in it and brown residue which I used to consume methamphetamine, the pink straw being used to scoop the methamphetamine into a pipe for smoking.

d. Exhibit U02 which was a 1 litre septone tin that was empty that had contained acetone. I was aware that the next door neighbour, Brendon Bradley had been using part of the area underneath [Ms Bunning’s] flat as a spray booth and had put up some black plastic sheeting to isolate the area that he used for painting from the washhouse area under the house. He had spray painted a child’s bed in that area that was in the shape of a car.

e. This item was described as containing approximately 2 mls of pale yellow liquid and which on analysis was found to mainly [sic] acetone containing pseudoephedrine. I don’t recall handling that tin but it was in an area of the house that I sometimes went into being the wash area and I may well have moved it. That is my explanation for my fingerprint being found on that item.

f. My defence to the charges was that I had nothing to do with either manufacturing methamphetamine and that I was not in possession of any of the chemicals or equipment located at [Ms Bunning’s] house. My evidence in support of that would have been to call my mother to give evidence about my living arrangements and to confirm that all of my personal effects including clothing, television and other items were all located in the shed that I occupied at their property.

[20] Mr David says that Mr Robb also failed to properly develop the defence theory that the manufacture of methamphetamine was being carried out at a neighbouring address. Fingerprints belonging to the person who lived at that address had been identified on several of the items found at Ms Bunning’s address, and this supported the theory. Mr David also says that Mr Robb failed to obtain confirmation from police witnesses that several items of equipment normally associated with the manufacture of methamphetamine were not found at Ms Bunning’s house.

Mr Robb’s evidence

[21] Mr David waived privilege in relation to his dealings with Mr Robb. As a result, Mr Robb filed a detailed affidavit in which he describes the contact between himself and Mr David prior to, and during, trial. He also discusses the strategies that he used at trial, and the circumstances in which Mr David elected not to give evidence.
[22] Mr Robb says that he first met and interviewed Mr David on 5 April 2011 at the chambers of Mr Hesketh, the barrister acting for Ms Bunning. Mr David was aware at that time that the police were seeking to interview him about the items they had found during the search of Ms Bunning’s address. Mr David was also aware that his fingerprints had been found on some of those items. Mr Robb says that he explained the trial process to Mr David, and gave him advice about speaking to the police. Mr David then went to the police station, where he was arrested and charged.
[23] Mr Robb says he then spoke to Mr David again later the same day in the holding cells at the Hamilton Courthouse. During this discussion he canvassed the fact that Mr David’s fingerprints had been found on several items, and in particular the small bottle that the police had found on top of the wardrobe in the bedroom of Ms Bunning’s house. Mr Robb says Mr David told him he could not recall touching those items, and said he found it hard to believe his fingerprints were on them.
[24] Mr Robb says he met with Mr David again at the Huntly Courthouse when Mr David next appeared on 6 June 2011. By that stage, Mr Robb had received disclosure from the police and was aware of the items on which Mr David’s fingerprints had been found. He says he went through that material with Mr David at the Courthouse. On 7 June 2011, Mr Robb wrote to Mr David confirming their discussions and advising him of his next court appearance.
[25] After Mr David was committed for trial, he failed to appear at callover on 11 August 2011. Although a warrant was issued for his arrest, Mr Robb persuaded the presiding Judge to allow the warrant to lie in Court until his next scheduled appearance on 8 September 2011.
[26] Mr Robb says he then met Mr David at callovers on 8 September, 14 December 2011 and 15 February 2012. At the callover on 15 February 2012, Mr Robb asked Mr David to go across the road to his office and make an appointment for a further interview. Mr David failed to make the appointment, and then failed to have any further contact with Mr Robb until 21 May 2012. On that date, he arranged an appointment for 25 May 2012.
[27] When Mr Robb met with Mr David on 25 May 2012, he discussed the Crown case with him. In particular, he explained to Mr David where his fingerprints had been found and showed him photographs of those items. Mr Robb says that Mr David was unable to remember using or touching any particular item, but accepted that he must have done so given the fact that his fingerprints had been found on them. He denied, however, that this had occurred whilst the items were being used for manufacturing methamphetamine. He accepted that he regularly used methamphetamine at the time of the police search, but denied having any involvement in the manufacture of the drug.
[28] At the end of the meeting on 25 May, Mr Robb arranged for Mr David to attend again on 12 June 2012. Mr David failed to keep that appointment. Mr David eventually telephoned Mr Robb’s office on 15 June 2012, and provided Mr Robb’s receptionist with his new cellphone number. He did not, however, make a further appointment to see Mr Robb. On the same day, Mr Robb received an email from Mr Tuck explaining that Mr David had seen Mr Tuck that day, and had asked Mr Tuck to act for him.
[29] On 16 June 2012, Mr Robb sent Mr David a text message asking him to meet at Mr Hesketh’s office the following day. Neither Mr David nor Ms Bunning attended that meeting. When Mr Hesketh contacted Ms Bunning by telephone, she told him that neither she nor Mr David planned to attend the meeting.
[30] Mr Robb says that he continued to prepare for trial, although he was uncertain whether Mr David would attend. Based on their previous discussions, Mr Robb had prepared a draft brief of evidence for him. He had hoped to confirm the contents of the brief at the meetings arranged for 12 and 17 June 2012. Given that Mr David did not turn up on either date, Mr Robb was unable to discuss the brief with him prior to the commencement of the trial.
[31] Mr Robb confirms that Mr David arrived at Court late on the day of his trial. When he spoke to Mr Robb, Mr David said he wanted Mr Tuck to represent him. When the case was called, however, the presiding Judge declined to adjourn the trial or to grant Mr Robb leave to withdraw. On that basis, Mr David agreed that Mr Robb would represent him. Mr David also agreed that he would plead guilty to a charge of being in possession of a methamphetamine pipe, but not guilty to all other charges.
[32] Mr Robb says he discussed the case with Mr David on numerous occasions during breaks in proceedings. After the Crown had closed its case, the Judge adjourned for the day to enable Mr David and Ms Bunning to decide whether to call evidence. Mr Robb says he met with Mr David at about 4.30 pm, and remained with him discussing the case and the issue of whether he should give evidence until about 5.30 pm. Mr Robb describes this discussion as follows:

34 WE then discussed whether he should give or wished to give evidence. He was reluctant as he felt he could not say much, he couldn’t explain his prints on any particular item as he couldn’t recall specifically touching them, and he couldn’t explain exactly who was at the address and involved in manufacturing as he denied being present when this occurred. I went through the things that could be said for him in closing based on the evidence to that point. We discussed the Crown case and the fact that the evidence was that he was not present at the time of the search and there was no evidence of him being at the address in the days leading up to the search. We then discussed whether he could add to the evidence or whether there were any things he could confirm to the jury about his defence or any other things he felt he might like to say to the jury. I asked him specific questions to try and draw out of him what he personally wished in terms of giving evidence. I did this as he was reticent. I tried to discuss how his giving evidence could impact on his trial. We talked about the pros and cons of giving evidence. Towards the end of that discussion he told me that he had been ‘sort of instructed’ by Ms Bunning that she would ‘give the evidence’ as he couldn’t say much and may make things worse by having little to say and being really vague, he said he would rather not give evidence and answer anything he didn’t know the answer to. He didn’t want to make things worse for her and him by giving evidence. We talked about his feeling regret if he didn’t give evidence and was found guilty. In the end he felt he couldn’t decide about giving evidence and wanted to think about it overnight and he wanted to know what Ms Bunning was going to do.

[33] On leaving the cells, Mr Robb met Mr Hesketh. Mr Hesketh told Mr Robb that Ms Bunning was unlikely to be giving evidence. Mr Robb says he then prepared his closing address making allowance for the possibility that Mr David and/or Ms Bunning might give evidence for the defence.
[34] The following morning, Mr Robb learned from Mr Hesketh that Ms Bunning would not be giving evidence because her account was not consistent. Mr Robb and Mr Hesketh then decided they would meet with Mr David and Ms Bunning so that they could make a final decision as to whether either would give evidence. He goes on to say:

37 WHAT then followed was a long discussion where both counsel and both accused were present. The benefits of giving and not giving evidence were discussed in detail. Ms Bunning was reluctant to give evidence and was at times trying to seek out what would be ‘good things’ for her to say. It was made clear that it was not for counsel to suggest things to say rather to ask what had in fact happened. The Appellant in the course of these discussions mentioned holding a glass dish in which the remnants of methamphetamine were found saying it is likely he had tried to get the remnants to use himself and maybe that is how his prints were there. He had not previously given that account. To that point he had indicated he had only handled items when they were not associated with methamphetamine. In the end Ms Bunning confirmed she would not give evidence. The Appellant said he felt he would ‘muck things up’ if he gave evidence and that he ‘couldn’t say much anyway’. Ms Bunning reinforced that view in her comments to him. But the Appellant was still reluctant to say yes or no to giving evidence by way of a final decision and he asked to be left alone to discuss things with Ms Bunning. They were left alone to do that. I then spoke with the Appellant on his own and he informed me that he was quite firm about not giving evidence.

Relevant principles

[35] As both counsel acknowledged, the manner in which trial counsel conducts the defence of a person facing criminal charges will not of itself justify an appellate court disturbing the ultimate verdict. That can only be justified where the end result amounts to a miscarriage of justice.^[2] The focus will therefore be on the outcome of the trial, with the cause of the miscarriage supplying the context.^[3] There must have been an error or irregularity in the trial that is sufficiently significant to create a real risk of an unsafe verdict.

Decision

[36] Counsel for Mr David did not require Mr Robb to attend for
cross-examination, so his evidence on material points remains unchallenged. Mr David gave evidence before us and was cross-examined by the Crown on matters contained in his affidavit. Having seen and heard Mr David give evidence, we are in a position to resolve areas of conflict in the accounts given by him and Mr Robb.
[37] As the passages set out above demonstrate, Mr Robb’s affidavit was very detailed whereas Mr David’s evidence was vague in many respects. We also reject Mr David’s assertion that Mr Robb was to blame in any way for the lack of contact between himself and Mr David during the period leading up to trial. Mr Robb’s evidence makes it clear that Mr David was responsible for that occurring, because he continually failed to make or keep appointments during this period. Mr David also failed to have any contact with Mr Robb at all during the period between 15 February and 21 May 2012. This may have occurred because Mr David was attempting to engage Mr Tuck’s services during this period and did not want to speak to Mr Robb whilst this remained a possibility.
[38] In assessing the weight to be given to the two men’s evidence, we observe that Mr Robb has the considerable advantage of being able to provide detailed contemporaneous notes that he made regarding matters canvassed during his discussions with Mr David. Understandably, Mr David does not. In areas where there is any material conflict in the evidence we prefer the evidence given by Mr Robb to that given by Mr David.
[39] We do not accept that Mr Robb was not sufficiently prepared when the trial began. He clearly identified the key issues from the outset. He knew that the fingerprints were the mainstay of the Crown case, and that it would be necessary to weaken the impact they would have on the jury. For that reason he discussed the issue of fingerprints with Mr David on every occasion when they met. His concern from the beginning was that Mr David would need to provide the jury with a plausible explanation as to why his fingerprints had been found on incriminating items located at Ms Bunning’s address. The balance of the Crown case was largely circumstantial, and could be explained without Mr David having to give evidence. The fact that Mr David did not live at the address was before the jury, as was the fact that the Crown could not prove when Mr David had last been at the address before the police search.
[40] Having read the trial transcript, we are satisfied Mr Robb provided Mr David with a competent defence. He established through cross-examination that it was not possible to age fingerprints, and that there was no way the jury could be sure when Mr David had touched the items on which his fingerprints were found. Mr Robb also reminded the jury that key items used in the manufacture of methamphetamine, such as a heat source and reaction vessel, were not found at Ms Bunning’s address. This meant that the jury could not be sure that methamphetamine had ever been manufactured at that address.
[41] The Crown called the neighbour to give evidence, and Mr Robb and Mr Hesketh both cross-examined him about the fact that he could not be certain when his fingerprints were placed on items found at Ms Bunning’s address. This enabled Mr Robb to close to the jury on the basis that it was reasonably possible that the neighbour was involved in the manufacture of methamphetamine. He was also able to ask the jury to consider why the police had charged Mr David with manufacturing methamphetamine on the basis of his fingerprints being found at Ms Bunning’s address, when they did not charge the neighbour even though his fingerprints were also found on items at the address.
[42] Mr Robb emphasised in his closing address that the jury could not be sure that Mr David had visited Ms Bunning’s address during the period leading up to the search. The evidence suggested that he had not visited the address since Christmas 2009. He also reminded the jury that there was no way of knowing when Mr David’s fingerprints were placed on the items found at Ms Bunning’s address.
[43] We are therefore satisfied that the essential elements of Mr David’s defence were put to the jury in a competent manner. Mr David also appears to have been satisfied during the trial with the manner in which Mr Robb conducted his defence. After Mr Robb delivered his closing address, Mr David accepts that he told Mr Robb he had done “an awesome job.”
[44] In reality, as counsel for Mr David appeared to acknowledge in his oral submissions in this Court, the only tenable issue on appeal is whether Mr Robb provided Mr David with adequate advice regarding his decision not to give evidence. Counsel for Mr David submits that Mr Robb neglected to provide Mr David with clear advice regarding the advantages and disadvantages of giving evidence. He submits that Mr Robb should also have emphasised that it was necessary for Mr David to provide the jury with an innocent explanation for the fact that his fingerprints were found on the incriminating items in Ms Bunning’s house.
[45] Several factors are relevant to this issue. First, we accept Mr Robb’s evidence that he explained to Mr David the advantages and disadvantages of giving evidence. The passages from his affidavit set out above demonstrate that this is so.^[4]
[46] Secondly, if Mr David had given evidence he would have had to acknowledge that he was using methamphetamine regularly at the time of the police search. That fact was already largely before the jury in any event because of his guilty plea on the charge relating to the methamphetamine pipe. In evidence before us, Mr David acknowledged that he was addicted to methamphetamine at this time. The jury would therefore assess his denial of any involvement in the manufacture of methamphetamine against his acknowledged use of that drug. Mr David’s association with methamphetamine would also have provided the prosecutor with a fertile field for cross-examination.
[47] Thirdly, Mr David’s evidence would only have been of value if he could provide a plausible explanation for the existence of his fingerprints on items that appeared to be associated with the manufacture of methamphetamine. Mr Robb had canvassed this issue with Mr David on numerous occasions since first meeting him more than a year earlier. Mr David’s current explanation regarding the water bottle^[5] was arguably plausible, but he did not need to give evidence in order for his counsel to deal with this item. It was an everyday item of a type likely to be found in many homes.
[48] The same cannot be said for the other items. They obviously required an explanation. At the time of the trial, however, Mr David had not been able to provide Mr Robb with a plausible explanation in respect of those items. In particular, Mr David had told Mr Robb that he could not explain why his fingerprints were found on the small glass bottle that the police found on top of the wardrobe. That was a significant exhibit, because the solid layer on the bottom of the bottle contained methamphetamine. There was no point in having Mr David tell the jury that he did not know how his fingerprints got on that bottle. Furthermore, Mr David’s current explanation in relation to that item does not sit easily with the fact that he could not provide it to Mr Robb at the time of the trial.
[49] Mr David’s current explanation in respect of the ashtray^[6] was before the jury to some extent. Mr Robb obtained a concession from one of the Crown’s witnesses that the ashtray with the straw in it was more consistent with being used in the consumption of methamphetamine rather than the manufacture of that drug. Mr Robb referred to this concession in his closing address. There would have been little point, in our view, in Mr David giving evidence to confirm that he had taken methamphetamine from the ashtray. That explanation is unlikely to have evoked sympathy from the jury. It might also suggest Mr David had been in contact with the ashtray very shortly after the methamphetamine had been manufactured.
[50] Mr David’s current explanation for his fingerprints being found on the container of acetone^[7] is both vague and unconvincing. He says that he does not recall handling the container, and says only that it was found in an area of the house that he went into on occasions. For that reason he accepts he may have moved the container at some stage. This explanation would not have advanced his defence to any significant degree.
[51] We consider that the evidence that Mr David now says he could have given would not have assisted his cause to any great degree. It would also have exposed him to cross-examination that could have damaged his cause irreparably.
[52] This leads to the next issue. If Mr David had given evidence, it would have been admissible not only in respect of the charges that he faced but also in respect of those faced by Ms Bunning. The prosecutor would have been entitled to
cross-examine Mr David about Ms Bunning’s involvement with the items found in her house. The passages set out above from Mr Robb’s affidavit^[8] demonstrate that Mr David and Ms Bunning were both clearly aware of, and concerned about, this issue when they were considering whether or not either of them should give evidence.
[53] This leads us to the final factor, which is that Mr Robb did not make the decision that Mr David would not give evidence. Mr David made that decision himself after talking to Ms Bunning, and after receiving appropriate advice from Mr Robb. He made the decision for good reason, because he and Ms Bunning both knew that there were very real risks involved for both of them if he was to give evidence and expose himself to cross-examination by the prosecutor.
[54] These factors persuade us that Mr David’s trial did not result in a miscarriage of justice.

Result

[55] The application for an extension of time is granted.
[56] The appeal against conviction is dismissed.

Solicitors:
Crown Solicitor, Auckland for Respondent

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^[1] R v David DC Hamilton CRI-2011-019-2489, 31 August 2012.

^[2] Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [69]–[70].

^[3] Ibid, at [6] and [70].

^[4] At [32] and [34].

^[5] Set out above at [19].

^[6] Set out above at [19].

^[7] Idem.

^[8] At [32] and [34].