Loffley v R [2013] NZCA 579 (25 November 2013)

Last Updated: 4 December 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA129/2013 [2013] NZCA 579
BETWEEN	JOEL LOFFLEY Appellant
AND	THE QUEEN Respondent

Hearing:	23 and 24 October 2013
Court:	Miller, Venning and Andrews JJ
Counsel:	L B Cordwell for Appellant P K Hamlin and Z R Hamill for Respondent
Judgment:	25 November 2013 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

[1] James Joseph Ruhe Lawrence, known as JJ, died on 14 November 2011, aged two, at the Orakei home he and his mother, Josie Lawrence, shared with Mr Loffley.
[2] JJ suffered a blow which split his liver and pancreas against his spine, causing catastrophic internal bleeding, extreme pain and, within a very short time, death. No independent eyewitness saw what happened, but the parties agree that it was no accident.
[3] It is said that one of two people might have killed JJ. The first is Mr Loffley, the second Ms Lawrence. Mr Loffley stood trial for murder in the High Court at Auckland. His defence was that the Crown could not prove that it was he who inflicted the injury, for Ms Lawrence had the opportunity and he was out of the house when it likely happened.
[4] Ms Lawrence gave evidence, both incriminating him and denying that she had harmed JJ. She also denied that she had confessed at JJ’s tangi, in a private conversation with Mr Loffley. He exercised his right to silence, and the trial Judge, Keane J, directed the jury that counsel’s questions about the alleged tangi confession were not evidence. The jury found Mr Loffley guilty of murder, and he was sentenced to life imprisonment with a minimum term of 19 years.
[5] Mr Loffley now appeals his conviction, primarily for miscarriage from counsel error. He marshals an array of allegations against trial counsel, Mr Chambers. Most of them go to a complaint that he was badly informed and advised before he elected not to give evidence; he says the election was wrong, for his defence rested on evidence about Ms Lawrence’s confession that only he could give. He argues too that counsel failed adequately to challenge Ms Lawrence in cross-examination and ought to have resisted propensity evidence of his earlier violence against JJ, Ms Lawrence, a previous partner and other children. Keane J is said to have erred by failing to exclude the propensity evidence of his own volition.
[6] The appeal rests substantially on the contested facts on which most of these allegations are premised. We received lengthy affidavits from Messrs Loffley and Chambers, both of whom also gave oral evidence, and shorter affidavits from four police officers who dealt with Mr Loffley.

The narrative

[7] We begin with a short and now largely uncontroversial narrative which also locates the issues in their factual setting.
[8] Ms Lawrence and JJ moved into the Orakei house in April 2011. Mr Loffley moved in during June 2011. JJ suffered two broken arms while Mr Loffley lived with Ms Lawrence, one in June and another in September.
[9] Soon after moving in, Mr Loffley rented a room to his brother Gabriel and partner Jessica Peat and their two infant children. All of these people stayed at the house overnight on 13 November 2011.
[10] Shortly before 9 am the following morning Ms Lawrence left the house to walk to a nearby property where she could call her bank to arrange an overdraft to carry her through the next few days. There was an altercation before she left; she wanted to take JJ, but Mr Loffley insisted on keeping him, saying he wanted JJ for the day. The errand was a routine one for Ms Lawrence, and it did not take long. She returned by about 9.15 am or shortly thereafter and sat on the porch for a time, still angry with Mr Loffley.
[11] Mr Loffley soon found her there, telling her that JJ had fallen from a bed and soiled himself. JJ was in the shower. She went upstairs, where Mr Loffley finished showering the boy. The Crown case was that JJ showed signs consistent with the injury that killed him; he was crouched and crying. Mr Loffley put JJ to bed, by which time he had stopped crying and appeared sleepy. Just before 10 am Ms Lawrence retired to her room and began to watch a movie.
[12] While she did so, Mr Loffley and Gabriel Loffley drove to Glen Innes. They returned not long before 11 am. Jessica Peat, who was in her room, thought she heard JJ’s door open and close during their absence. Ms Lawrence was the only other adult in the house at the time. The defence case was that the injury may have happened then.
[13] On his return Mr Loffley went to check on JJ, who was not breathing. He rushed to Ms Lawrence, and the alarm was raised at once. A Housing Corporation electrician who had come to the house to replace smoke alarm batteries rendered first aid assistance at about 11.10 am. Ambulance officers arrived at about 11.27 am. They found that JJ was dead, and they observed that while his trunk was warm his extremities were cold, which suggested he had been dead for some time.
[14] Mr Loffley told others, including the Police in a brief video interview on 14 November, that while in his care JJ had fallen from a bed:

... he’s jumped, fallen off the bed and landed on his face, on his chin, and his legs have gone up over his head um he was wheezing, I picked him up, he had a dazed and confused look in his eyes.

The Crown alleged that while JJ did have a graze on his chin, Mr Loffley fabricated this account in an attempt to explain the injury, and that he showered JJ in an attempt to conceal what he had done.

[15] JJ’s tangi was held on 17 November at Whatuwhiwhi. Mr Loffley attended with Ms Lawrence. It is his case that later that evening she admitted that she had hit JJ and she made further admissions the next day, saying that she had lost it when JJ came into her room and stood on her laptop computer, but that they agreed she would not confess until after the birth of a baby which she was by then carrying. It is this evidence that he says his defence depended upon. At trial she denied the alleged admissions when they were put to her in cross-examination, and Keane J directed the jury that the question was not evidence and must not be treated as such.
[16] On 17 November the Police also began to intercept telephone communications between Mr Loffley and Ms Lawrence. The transcripts record discussions about what may have happened to JJ.
[17] At about 7 am on 13 December 2011 the Police found Mr Loffley at a Mangere address and arrested him for JJ’s murder. He was taken to the Auckland Central Police Station for questioning. He had been drinking the night before, and he maintains that he was still very intoxicated and told Mr Chambers so. Later that day he gave a video interview at which Mr Chambers was present. In that interview he denied harming JJ, did not blame Ms Lawrence or refer to her alleged confession, and admitted using physical violence against JJ and other children of his, and against Ms Lawrence and a previous partner.
[18] Mr Loffley was remanded in custody after the interview on 13 December. During his pre-trial remand he and Ms Lawrence maintained frequent contact. He maintains that she made admissions during telephone calls, which were recorded at the prison. He also maintains that counsel did not take adequate instructions from him during this period, and failed to give him much of the police disclosure.
[19] There were no pre-trial applications, although the Crown gave notice on 31 July 2012 that it intended to lead propensity evidence. The trial began on 29 October 2012. Mr Loffley’s video interview of 13 December 2011 was played. The Crown relied on the interview for the propensity evidence, to which Mr Chambers did not object but which Mr Cordwell says was inadmissible.
[20] The Crown closed its case on the afternoon of 9 November 2012, a Friday, and Mr Loffley made his election when the trial resumed on Monday 12 November. On counsel’s advice, he elected not to give evidence. He now maintains that he had always planned to give evidence and was taken by surprise when Mr Chambers changed tack during a brief discussion in the cells on the Friday; further, that counsel left him with no choice.
[21] We will discuss the central events in generally chronological order, recording our factual findings as we go, before turning to the grounds of appeal.

The video interview of 13 December 2011

[22] We record that at the end of the hearing in this Court Mr Cordwell abandoned a ground of appeal relating to the video interview. Mr Loffley had claimed that he was seriously intoxicated, such that the interview ought not have been admitted. We need only say that the evidence before us, including that of the police officers, did not sustain the claim. Nor do we accept Mr Loffley’s evidence that Mr Chambers advised him to undergo the interview to “clear the air”; on the contrary, we find, Mr Chambers advised him to wait but, after initially accepting that advice, Mr Loffley insisted.
[23] As noted, the interview is the source of much of the propensity evidence used at trial. That evidence falls into four categories. The first category concerns JJ. During the interview Mr Loffley first denied then admitted that he had kicked JJ “up the arse” on a previous occasion. He denied having caused JJ more serious injuries, including two broken arms. He was told that another person, Karlos Mihinui, (who gave evidence at trial) had claimed JJ was afraid of him. The Police played a telephone conversation in which he admitted to Ms Lawrence that he had kicked JJ’s “bum” twice; he then said that he did not recall doing so.
[24] The second category concerns Ms Lawrence. Mr Loffley admitted that he had assaulted her “maybe twice”, using “back-hands”. He denied doing anything more than that, although the interviewer played a telephone conversation in which she referred to “all the times you bloody bashed me.” She expanded on these claims in her evidence at trial, which we discuss below.
[25] The third category concerns violence against two other children, neither of whom lived in the household Mr Loffley shared with Ms Lawrence. He admitted disciplining his son by kicking him “up the arse” “countless” times before the boy reached the age of six, and treating another boy, the son of a former partner, in the same way.
[26] The final category concerns violence against former partners, which Mr Loffley admitted. The only specific details given were that one of them was whacked with a “vacuum pipe” and “strangled”.
[27] It will be seen that the interview was based in part on out of court statements by other people. Not all of them were called at trial. Mr Chambers considered that propensity evidence was admissible and preferred to have it adduced in this form rather than have the Crown call the witnesses. Admissibility of the evidence was challenged before us, but if admissible, the decision to have it adduced in this way was not specifically challenged and in any event cannot now be shown to have been wrong.

Pre-trial phase: the exchange of information and instructions between counsel and client

[28] Mr Loffley complained that counsel neither made available to him the police disclosure nor briefed him adequately at any time before trial, with the consequence that his decision to not give evidence was inadequately informed.
[29] It is not in dispute that Mr Chambers visited Mr Loffley at Mt Eden Prison on five occasions before May 2012, twice in September, and again on 24 October, and also telephoned Mr Loffley on a number of occasions. Nor is it in dispute that substantive instructions about the trial were not taken in the initial meetings. Mr Loffley was not asked to write out his own narrative until the 24 October meeting. He complained that he did not get any disclosure, apart from a police opposition to bail form, until 17 September.
[30] Mr Chambers received disclosure from the Police throughout the pre-trial period. It was extensive. Mr Loffley was not given all of it, but we accept Mr Chambers’ evidence that he gave Mr Loffley the material parts, and that Mr Loffley had this material when he prepared his narrative, which Mr Chambers delayed asking for until disclosure was complete. We find that Mr Loffley asked initially that Mr Chambers not give him all the disclosure in case other prisoners read it, but counsel did discuss it with him during their meetings and parts of it were left with Mr Loffley. In cross-examination it emerged that Mr Loffley had discussed disclosure with Ms Lawrence in a telephone conversation on 13 April. The conversation establishes that he had the statements of a number of witnesses and could not have been relying solely on what was said in the opposition to bail form that he had received earlier, in January. In short, we reject Mr Loffley’s evidence about counsel’s failure to share disclosure with him. We also note that Mr Loffley received, apparently in error, an extensive summary of the Crown case which not only set out the proposed evidence but also commented on the merits of the witnesses.
[31] It is not in dispute that Mr Chambers knew of the alleged admissions by Ms Lawrence, which Mr Loffley disclosed to him for the first time on 17 September 2012, saying that Ms Lawrence had killed JJ and had admitted doing so in conversations with Mr Loffley and one of her “cousins up north”, whom he could not and cannot identify. Nor is it in dispute that the two men anticipated that Mr Loffley might give evidence.
[32] Mr Loffley complained that counsel was not prepared for trial; Mr Chambers appeared to be taken by surprise by some of the evidence, notably that of Ms Peat, and he conveyed the impression that he had not read it. We do not accept this claim. It has not been shown that counsel was unaware of anything that is now said to be material. Notably, he did put to Ms Lawrence in cross-examination that she had gone into JJ’s room and hit him, Ms Peat did give evidence that she heard a door open and shut while Mr Loffley was out of the house, counsel did highlight the point in closing, and the Judge identified it as part of the defence case in his summing-up. We do accept that Mr Loffley constantly passed notes to counsel, often suggesting questions for witnesses, but that is not evidence that counsel was ill-prepared. Mr Chambers considered the suggestions and used them where he thought they would advance the case.

The parties’ stances at trial

The Crown case

[33] The Crown case drew together a number of strands: the evidence was consistent with JJ having been injured while Ms Lawrence was out of the house; Mr Loffley’s behaviour, which included showering JJ before 10 am and checking on him at 11, was consistent with that; Ms Lawrence’s computer confirmed that she had started watching a movie at 9.57 am; she may have had the opportunity to injure JJ after that time, but her evidence that she did not was credible; by contrast, Mr Loffley was a controlling and violent presence in the house; it was he who had broken JJ’s arms; he lied by suggesting a fall from the bed might account for the injury, and lied in interview about the extent of his violence within the house; and the injury itself required great force.

The defence case

[34] The defence case was that the Crown could not prove to the criminal standard that it was Mr Loffley who injured JJ. Counsel did not set out to prove that Ms Lawrence did it, but in cross-examination and in closing he highlighted uncertainty in the medical evidence about time of death, the opportunity enjoyed by Ms Lawrence, her failure to get immediate medical assistance when JJ suffered earlier broken arms, her own use of violence in the relationship with Mr Loffley, the evidence of Ms Peat about the door opening and closing when Ms Lawrence was the only other adult in the house, and an absence of grieving behaviour from Ms Lawrence in the immediate aftermath.

Ms Lawrence’s evidence

[35] Ms Lawrence gave evidence of Mr Loffley’s controlling and aggressive behaviour towards her. It included assaults, and monitoring her calls and contact with others. He would occasionally give JJ cannabis. She explained that he suggested JJ’s first broken arm may have happened when “playing rough” with Mr Loffley, that Mr Loffley had care of JJ when he suffered the second broken arm at the house, and that JJ suffered a number of minor injuries that Mr Loffley put down to accident. He would sometimes insist on having JJ for the day and require her to leave them alone. He did so, she said, on the morning of 14 November; that was the cause of the altercation between them. She deferred, she said, because she was afraid of him.
[36] She recounted how, after returning to the house from her banking errand, she sat outside until Mr Loffley came to get her, explaining that JJ had fallen from a bed, grazing his chin, and had soiled himself. When they went upstairs JJ was in the shower; he was crouched and crying and screaming. Mr Loffley got him out of the shower and put him to bed, and fetched her to say “goodnight” to him. It was early for JJ’s morning nap, but he seemed sleepy. By then he had stopped crying. She went to her room to watch a movie, and did not leave it until Mr Loffley brought JJ in at about 11 am, saying that he couldn’t wake the boy. She did not know that Mr Loffley had left the house in the interim.
[37] Mr Chambers wasted no time challenging Ms Lawrence’s veracity. He began his cross-examination by inquiring why she had sought to give evidence from behind a screen. When she responded that she feared that Mr Loffley would intimidate her, counsel established that they had had a great deal of contact, including visits, since his arrest. She conceded that she could have ended the relationship but had not wanted to. Counsel suggested that she had herself given JJ cannabis, which she admitted; that she may have broken his arm on the second occasion when “wasted”, which she answered by saying she had been drinking but thought Mr Loffley must have done it; that she failed to get medical attention for JJ’s broken arm, which she tried to excuse by saying she feared he would be taken from her; that she had hit Mr Loffley on occasion, which she admitted; that she had a major anger problem, which she denied and was angry on the day JJ died, which she admitted; that she killed JJ in anger, which she denied; and that she confessed at JJ’s tangi, which she denied while admitting that she had told Mr Loffley she felt responsible and thought she “might get five or six years” because it was an accident.

The agreed statement of facts

[38] The record includes an agreed statement of facts, signed by counsel and Mr Loffley, relating to JJ’s broken arms. It recorded not only the injuries and their treatment but also the accounts given to the clinicians by Ms Lawrence, who made no mention of Mr Loffley and attributed both breaks to accident, and also her failures to bring JJ to follow-up appointments.
[39] The agreed statement concerns the propensity evidence, to which we will return. There is no suggestion that it was inaccurate, and it was in a number of respects helpful to the defence. We address it now because Mr Loffley gave evidence that counsel simply told him to sign the document, which was admitted into evidence on 6 November, without explaining it or allowing him to read it or giving him any choice in the matter. Mr Chambers’ evidence was that he had taken instructions from Mr Loffley about how JJ broke his arms, that he explained what the agreed statement said and Mr Loffley read it, and that he was given the choice whether to sign it or not. For reasons which we develop below, we did not find Mr Loffley a credible witness. We accept Mr Chambers’ account.

Mr Loffley’s election

[40] Mr Loffley contended in his affidavit that he always intended to give evidence, notably about the tangi confession, and Mr Chambers concurred. We do not accept this evidence. We find that, as noted earlier, Mr Loffley anticipated that he might give evidence and counsel prepared accordingly. We find, preferring Mr Chambers’ evidence, that no firm decision had been made about giving evidence; rather, the decision would await the close of the Crown case. It follows that we reject Mr Loffley’s claim that the suggestion that he might not give evidence was made for the first time after the Crown closed its case.
[41] It is common ground that advice was given in a short meeting in the cells on Friday 9 November 2012, and that Mr Chambers recommended that Mr Loffley not give evidence. No written instructions were given; it is not Mr Chambers’ practice to insist on them. As has been said before, defence counsel ought to take written instructions, if only because the discipline of doing so prevents misunderstandings.
[42] Mr Loffley deposed that at the meeting he was told that he would not be giving evidence, and did not realise he had a choice, nor were the pros and cons of giving evidence explained. He did not appreciate the significance of Keane J’s warning that if he did not give evidence the jury would be told to put the tangi confession to one side; had he done so, he would have made a “real fuss” about not giving evidence.
[43] We do not accept this account. We observe that Mr Loffley was in court when Ms Lawrence gave her evidence and when Keane J warned that in the event that Mr Loffley did not give evidence he would caution the jury that there was no evidence of the tangi confession.
[44] We also find that Mr Chambers did not convey the impression that Mr Loffley had no choice in the matter. Mr Loffley understood, as he had done all along, that the decision was his to make. He did not convey that he definitely wanted to give evidence, although he was prepared to do so. Counsel did not spell out the pros and cons of giving evidence in detail, because he considered that Mr Loffley already had a good understanding. Mr Loffley was astute and attentive, and had taken an active interest in the trial.
[45] We also find that the decision was not finally made at the Friday meeting. Mr Loffley knew he had the weekend. He met Mr Chambers in the cells briefly before the trial resumed on 12 November, and confirmed that he would not give evidence.
[46] We do accept that Mr Chambers firmly advised against giving evidence; as he put it before us, he made it plain that he thought Mr Loffley would do himself a “grave disservice” were he to enter the witness box. Counsel believed that the trial had gone reasonably well and the defence was there for the jury, and he considered Mr Loffley vulnerable to cross-examination. We return to this advice below.

The grounds of appeal

[47] As noted, the appeal is founded primarily on counsel error. It is settled law that an appellant may show that justice miscarried at trial by pointing to an error by former counsel and a real risk that the error affected the verdict.^[1]
[48] It is convenient to address the “counsel error” grounds of appeal in the following order:

• (a) whether counsel failed to take instructions and share disclosure with Mr Loffley before trial;
• (b) whether counsel adequately cross-examined Ms Lawrence;
• (c) whether counsel gave Mr Loffley appropriate advice before the election was made;
• (d) if the election was fairly made, whether it was nonetheless afflicted by counsel error, Mr Chambers having recommended that Mr Loffley not give evidence; and
• (e) whether counsel erred by presenting more than one defence.

[49] Counsel’s failure to object to the propensity evidence is also challenged, but of course it was an error only if an objection ought to have been sustained. Accordingly, we focus on whether the evidence was admissible.
[50] Having regard to our factual findings, we can deal shortly with most of the grounds of appeal.

Taking instructions and sharing disclosure before trial

[51] Our factual findings dispose of this ground of appeal. We accept that it was incumbent upon counsel to take instructions about any significant step in the proceeding^[2] and ensure that Mr Loffley was familiar with the police disclosure, but we are satisfied that Mr Chambers did so.

Cross-examination of Ms Lawrence

[52] We have referred above to the cross-examination of Ms Lawrence. Mr Chambers put Mr Loffley’s defence to her. Mr Cordwell did not suggest otherwise. He contended rather that the cross-examination lacked sufficient detail in several respects: Ms Lawrence was not asked about inconsistent statements she had made to the Police; her alleged admission to Mr Loffley that she hit JJ because he came into her room and stood on her laptop was not put; she was not expressly confronted with Jessica Peat’s evidence that JJ’s door had been heard to open and close while Mr Loffley was out; and she was not asked about post-arrest telephone calls and meetings with Mr Loffley in which she is said to have repeated her confession at the tangi.
[53] We do not accept these submissions. Counsel must enjoy substantial latitude in cross-examination, and we are not persuaded that the additional details would have made any difference. Mr Cordwell did not satisfactorily explain why Ms Lawrence’s inconsistencies in previous statements would assist. She firmly denied leaving the room, and counsel did challenge her on that point. There can be no doubt that she would simply have emphasised her denials if other alleged admissions had been put to her, and it would have given Crown counsel an opportunity to point to the absence of any such admission in the transcripts of her telephone conversations with Mr Loffley.
[54] Mr Cordwell also criticised Mr Chambers for asking Ms Lawrence about the alleged tangi confession when he lacked an evidential foundation for doing so, suggesting that this was a breach of counsel’s ethical duties.^[3] This point is both irrelevant for present purposes and misconceived. Mr Chambers had a foundation in Mr Loffley’s instructions, and it was necessary to the conduct of the defence that Ms Lawrence be identified as the person who may have committed the crime. Counsel also made some headway with Ms Lawrence, securing an acknowledgment that she had admitted expecting to go to prison. Mr Cordwell pointed out that Keane J reacted swiftly to the alleged tangi confession, warning counsel and Mr Loffley, in the absence of the jury, that unless Mr Loffley gave evidence he would have to caution the jury that the question was not evidence. In the event the Judge did exactly that. But that is a different point; it relates to Mr Loffley’s election.

Mr Loffley’s election

[55] We have found that Mr Loffley did decide not to give evidence, and was appropriately informed and advised before he made that decision. In particular, he understood that the jury would be told that there was no evidence of the tangi confession. That disposes of this ground of appeal.

Was the election made on bad advice?

[56] Mr Loffley contends that but for counsel’s advice he would have given evidence, which we accept, and that the advice was wrong. He says that counsel erred because his evidence was both essential to his defence and credible. He asks that we determine this issue by assessing the evidence that he might have given.
[57] We begin by setting the issue in its proper context. The appellate question, posed by s 385 of the Crimes Act 1961, is whether there has been a miscarriage of justice. In some cases the answer may be informed by evidence that is new, in the sense that the jury did not hear it. To that end, an appellate court may receive new evidence as a matter of discretion, where the court finds it necessary or expedient.^[4]
[58] The appellate court assesses new evidence for credibility, freshness, and materiality to verdict.^[5] As this Court pointed out in Witehira v R, the authorities are unsettled as to whether the screening is done to determine admissibility or as part of the court’s substantive inquiry.^[6] The former approach has traditionally been taken to evidence that might have been led at trial. As a matter of practice, appellate courts have long taken the latter approach to evidence of counsel error, which almost by definition could not be led at trial. The two approaches merge where, as here, the error concerns counsel’s handling of evidence that might have been led at trial. In such cases the appellate court usually treats the new evidence as fresh if persuaded that counsel error explains its absence from the record. Applying that reasoning, an appellant may seek to give evidence not only about counsel’s conduct but also about the crime, and the court may treat the latter as fresh if satisfied that it would have been led at trial but for counsel error.^[7]
[59] An appeal may succeed, in the end, even though counsel’s conduct is found to be reasonable or the new evidence is found not to be fresh.^[8] The court ultimately focuses on the outcome, asking whether the verdict is unsafe.^[9] However, an appellant does not succeed merely by pointing to new evidence and arguing that the jury might have thought it material.^[10] The interests of justice include other considerations, notably finality. The defence must put up its best case at trial, and an appellate court may discount evidence that might with reasonable diligence have been called there.^[11] An appellant is normally bound by decisions reasonably made by counsel, or by the appellant on counsel’s reasonable advice, although such decisions might have affected the result.^[12] Of such decisions, the election to give evidence, or not, is usually the most prominent.^[13] Where the appellant was advised and there were reasonable grounds for the election, the appellate court will ordinarily hold that there was no miscarriage.^[14]
[60] That brings us to this case. Mr Loffley’s challenge to counsel’s advice confronts formidable difficulties. To begin with, we have found that he chose not to give evidence although he knew of the evidence that he might give and its significance for the case, if accepted. This is not one of those cases in which evidence has emerged only after trial. Next, it is not strictly correct to say that the defence rested on evidence that only Mr Loffley could give; there is a distinction between contending that the Crown had not excluded Ms Lawrence as JJ’s killer and proving that she was. Very seldom can defence counsel be criticised for taking the former approach, as Mr Chambers did. Next, the question is not whether the advice was correct in hindsight but whether it was reasonable when given. As to that, Mr Chambers had made substantial headway in his cross-examination of Ms Lawrence, as we noted at [37] above, and the medical evidence could not exclude the possibility that JJ had been injured when Mr Loffley was out of the house.
[61] These conclusions would ordinarily be sufficient in themselves to dispose of this ground of appeal on the basis that no counsel error has been demonstrated. It would follow that Mr Loffley’s evidence about the crime and the tangi confession could not be considered fresh. However, we heard the evidence de bene esse, and its content is such that it must have resulted in an acquittal had the jury found it credible. In the circumstances, we have assessed it on two alternative bases. First, if sufficiently credible it might establish error in counsel’s unequivocal advice about the election. We observe that Mr Chambers’ advice was based not only on the progress that had been made but also on the belief that Mr Loffley would present badly in the witness box. Counsel was frankly sceptical about the tangi and prison confessions, and he thought that once in the witness box Mr Loffley, a loquacious man, would try to talk his way out of trouble. Second, it might show, notwithstanding absence of counsel error, that the conviction was unsafe.
[62] We heard Mr Loffley’s account at some length, only to find that it confirmed the wisdom of counsel’s advice. We did not find him at all credible. He deposed clearly enough to the tangi confession and the agreement under which Ms Lawrence would not admit responsibility until after their baby was born, and he confirmed that she repeated those admissions in conversations held when he was remanded in custody. But this account unravelled when he was asked to explain the intercepted communications.
[63] As noted earlier, the Police began to record telephone communications between Mr Loffley and Ms Lawrence on 17 November 2011. It is apparent from the transcripts, and Mr Loffley confirmed before us, that he believed the calls were being intercepted. Some of these conversations had already been played to the jury during the Crown case, but not all. The transcripts are notable for his repeated attempts to manipulate her into admitting responsibility. On one occasion he asked her outright “did you bash the boy”. She consistently denied harming JJ, but at no time did he tax her with the alleged tangi confession. Nor did he disclose the confession to anyone else, not even his counsel.
[64] Mr Loffley tried to explain this by saying that by taking “the focus away” from Ms Lawrence he was honouring an agreement that would keep her out of prison while she had “my baby inside her”, but he wanted an admission in case she later resiled from the agreement. That inherently unlikely stance cannot be reconciled with his attempts to procure admissions, even before his arrest, in telephone conversations that he believed were being intercepted. He sought to explain his failure to remind her of the tangi confession by saying he was not a “snitch”; he wanted her to make the admission herself. That explanation assumes that a jury might believe that Mr Loffley recognised an ethical distinction between telling the Police of the confession himself and manipulating her into inadvertently doing so.
[65] The alleged prison confessions confront the same problem. The calls were recorded, and during the trial they were checked after Mr Loffley told Mr Chambers about the alleged admissions. In none of the records is there any confession by Ms Lawrence or any reference to the tangi confession.
[66] It bears repeating that there is no evidence from any other source that might corroborate Mr Loffley’s account, as one might expect had Ms Lawrence been in a confessional frame of mind in the days after JJ’s death. There was evidence from another witness about their behaviour at the tangi, but it was not helpful to Mr Loffley; the witness remarked on his controlling behaviour toward Ms Lawrence, which extended to accompanying her when she went to the bathroom. Mr Loffley did not tell his counsel about the alleged confessions when he was arrested; not until September 2012, not long before trial, did he reveal it.
[67] We conclude that the evidence Mr Loffley would give is neither fresh nor credible, and counsel’s advice has not been shown to be wrong. It follows that his evidence about the crime and the alleged confessions will not be admitted, and he will be held to his election. This ground of appeal fails.

Did counsel err by putting more than one defence?

[68] In cross-examination, Mr Chambers asked medical witnesses whether JJ’s injuries might have been accidental. Mr Cordwell attacked this decision, contending that it was taken without instructions and was an error because it detracted from the defence case.
[69] It is not suggested that that Mr Chambers had instructions not to put the possibility of accident as part of the defence case. Nor did he close on that basis, although he had asked questions about it during the evidence. Rather, he focused on the question whether the Crown had proved that Mr Loffley inflicted JJ’s injuries. He also sought to account for Mr Loffley initially speaking of a fall; he said that was all Mr Loffley knew at the time about what had happened to JJ. In the circumstances we do not think that the questions asked of the expert witnesses can possibly be characterised as an error, let alone an error that might have affected the outcome.

Was propensity evidence correctly admitted?

[70] We have identified at [23]–[26] above the four kinds of propensity evidence that the jury heard.
[71] Although none of the evidence was challenged, Keane J gave a propensity direction. The direction addressed in orthodox terms what the Judge described as Mr Loffley’s violence towards his past partners, and Ms Lawrence, and his own sons. It extended to evidence of threats of physical discipline against JJ but not the actual violence Mr Loffley is said to have inflicted on JJ before 14 November 2011; the Judge implicitly treated that as directly probative of the crime. He instructed the jury that, if accepted, the propensity evidence involving the women might show that Mr Loffley was a dominant and violent partner, but his relationship with JJ was a different matter. His behaviour toward Ms Lawrence was “not the primary evidence” but merely “contextual”, and the same was true of his violence toward earlier partners and other children.
[72] We deal with each category of evidence in turn.

(i) Previous injuries to JJ

[73] Mr Cordwell argued that evidence of JJ’s broken arms was not probative of a propensity to inflict the injury that killed him, and the evidence was in any event unreliable, for Mr Loffley was never shown to have caused the broken arms. The argument applies generally to evidence of previous injuries to JJ.
[74] We accept that evidence of this kind is propensity evidence as defined; it showed a tendency to act in a particular way toward JJ or to have a particular state of mind about him. However, it did not require a propensity direction in this case, for its relevance did not depend on notions of coincidence and probability; the evidence went to the relationship between Mr Loffley and JJ, tending to show that Mr Loffley was aggressive and violent toward him, and it formed part of the family setting in which JJ died.^[15]
[75] We do not accept that the evidence of Mr Loffley’s previous violence against JJ ought to have been excluded for unreliability. There was direct evidence that he was responsible for the violence, including one broken arm, and circumstantial evidence that JJ was in his care when other injuries happened. He had admitted kicking the boy’s bottom. Other witnesses observed that JJ was afraid of him. The reliability of the evidence was a question for the jury. Its probative value was high, and the Judge cautioned the jury against prejudice; he directed them to take care when weighing such evidence, for a tendency to violence could not prove, of itself, that Mr Loffley killed JJ. We are satisfied that the evidence was admissible.

(ii) Previous assaults on other children

[76] As noted, this evidence comprised admissions that Mr Loffley disciplined his other children by kicking their bottoms. It was propensity evidence, and it was included in the Judge’s propensity direction. Mr Cordwell contested its admissibility on the ground that it did not establish a propensity to commit the quite different assault on JJ, which involved a blow to his stomach region. He also contended that it was highly prejudicial.
[77] We accept that the injury to JJ did not involve his bottom. But a kick or stomp was one possible cause of death, and discipline may have been the motivation. A propensity to use excessive discipline on very young children, as JJ and the other children were, was accordingly relevant and admissible to show that he inflicted the fatal injury. The propensity direction instructed the jury about the limits of the evidence and cautioned them against prejudice. We are satisfied that the evidence was admissible.

(iii) Previous behaviour toward Ms Lawrence

[78] Mr Cordwell submitted that propensity evidence about previous assaults on Ms Lawrence was not capable of showing that Mr Loffley killed JJ.
[79] We accept that the evidence was propensity evidence as defined; it evidenced a tendency to use violence to control her. The nature of the relationship between Mr Loffley and Ms Lawrence was relevant. It explained, for example, why she did not insist on taking JJ with her when she went on her morning errand on 14 November; she said that she feared a beating if she persisted. It was not deployed as propensity evidence in relation to JJ’s injury; the Judge cautioned the jury that that was a “quite separate” question. In the circumstances a propensity direction was not required, although one was given. The probative value of the evidence considerably outweighed its prejudicial effect. We are satisfied that it was admissible.

(iv) Previous assaults on other partners

[80] The evidence that Mr Loffley had assaulted other partners in the past fell into a closely related category. It was propensity evidence tending to prove that his relationship with Ms Lawrence was violent and controlling. That was in issue at trial, because the extent to which he behaved in this way was in dispute. As noted at [26] above, he conceded only that he had assaulted a former partner on a couple of occasions. The Crown case was that he exercised psychological control over Ms Lawrence.
[81] This evidence had some probative value, and its prejudicial effect was not significant; it did not play a substantial part in the trial, and the jury already knew that he had admitted to some violence against Ms Lawrence and JJ. We are satisfied that the Judge’s direction satisfactorily compensated for any prejudicial effect and the evidence was admissible.

Decision

[82] The appeal is dismissed. The evidence before us was suppressed in the interim, pending this judgment. That order is now discharged.

Solicitors:
Crown Solicitor’s Office, Wellington for Respondent

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

^[2] R v K (CA421/08) [2009] NZCA 176 at [51]–[52].

^[3] Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, r 13.10.2.

^[4] Crimes Act 1961, s 389.

^[5] This is the order adopted in Lundy v R [2013] UKPC 28, but other cases take a different approach, depending on the circumstances.

^[6] Witehira v R [2011] NZCA 255 at [28] – [40]; see also Sungsuwan, above n [1] at [7] and Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63 at [25].

^[7] See for example Bland v R [2012] NZCA 165.

^[8] Sungsuwan at [70]; Zhang v R [2013] NZCA 87.

^[9] Sungsuwan at [69].

^[10] The discussion in R v Bain [2004] 1 NZLR 638 (CA) at [25] must be read with paragraphs [22]–[24].

^[11] R v Bain, above note [10], at [22].

^[12] R v Scurrah CA159/06, 12 September 2006 at [18], R v Pointon [1985] 1 NZLR 109 (CA), cited in Sungsuwan at [45].

^[13] See for example R v Pointon and V (CA107/2008) v R [2012] NZCA 14.

^[14] R v H CA177/02 CA177/02, 21 September 2004; Dalhousie v R [2011] NZCA 486.

^[15] Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [92], per McGrath and William Young JJ; Perkins v R [2011] NZCA 665 at [22].