Simpson v R [2016] NZCA 95 (9 April 2016)

Last Updated: 18 April 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA659/2014 [2016] NZCA 95
BETWEEN	MATTHEW FERGUSON SIMPSON Appellant
AND	THE QUEEN Respondent

Hearing:	1 March 2016
Court:	Ellen France P, Keane and Dobson JJ
Counsel:	N J Sainsbury for Appellant D R La Hood for Respondent
Judgment:	6 April 2016 at 11.30 am

JUDGMENT OF THE COURT

A An extension of time to file the notice of appeal is granted.

B The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France P)

Table of contents

Para No

Introduction [1]
Background [5]
The facts [6]
The Crown case at trial [7]
The defence [8]
The conviction appeal [11]
A conflict of interest? [12]
Discussion [13]
Incompetence in conduct of trial? [26]
Trial preparation [27]
The treatment of the appellant’s initial statement to the police [32]
Failure to put matters in cross-examination [38]
Failure to challenge the admissibility of DNA evidence [43]
Actions of the complainant’s support person [54]
The sentence appeal [56]
Result [59]

Introduction

[1] The appellant was convicted after trial on one count of rape. He was acquitted on a charge of sexual violation by unlawful sexual connection involving anal penetration in relation to the same complainant. The appellant was sentenced by the trial Judge, Judge Davidson, to a term of nine and a half years imprisonment.^[1] He appeals against conviction and sentence.
[2] The conviction appeal is advanced primarily on the basis the conduct of trial counsel, Keith Jefferies, has caused a miscarriage of justice. The challenge to trial counsel’s conduct focuses first, on the impact of a police search of Mr Jefferies’ home and office on the evening of the first day of trial and his subsequent conviction on drugrelated offending. Secondly, there is a challenge based on various matters in the conduct of the trial such as preparation of the appellant’s brief of evidence; the approach to cross-examination; and the failure to challenge the admissibility of DNA evidence. There is a further ground of appeal based on the impact of the complainant’s support person’s responses during some of the evidence of the complainant.
[3] On sentence, the appellant says the starting point adopted was manifestly excessive.
[4] After setting out the background we deal with the conviction and sentence appeals in turn.

Background

[5] The incident giving rise to the charges took place on 1 February 2013.

The facts

[6] On 31 January 2013 the complainant, a woman in her twenties, travelled to Wellington with friends for the Rugby Sevens weekend. She stayed at a friend’s apartment. What happened next is summarised by Judge Davidson in sentencing as follows:^[2]

[3] The next day, Friday 1 February, she began to get ready for the Sevens. She dressed up in a costume and consumed a significant amount of alcohol over the course of the afternoon. By late afternoon, she was severely intoxicated. She then went with her friends to your workplace where there were leaving drinks for you. You and she had never met each other before. There, she consumed more alcohol and became sick.

[4] Around 6.00 pm, it was decided that she was so sick that she would be unable to go to the Sevens and that she should be taken back to the apartment and put to bed. You drove her and her friends to the apartment and helped carry her inside. She was put to bed. You then left and dropped her friends off at the Wellington Stadium.

[5] You then returned to the apartment and entered through an insecure door. You went into the bedroom where she was asleep and raped her vaginally from behind. During this, she woke, realised what was happening, but did not know who the offender was.

[6] Her evidence was that she was then raped by you anally. The jury acquitted you on this charge. The jury must have concluded that the Crown had failed to prove either anal penetration, lack of consent, or a lack of your belief in consent beyond reasonable doubt.

[7] Her evidence was that after this, there was a further act of intercourse. However, you faced no specific charge relating to that.

The Crown case at trial

[7] The complainant gave evidence, as the Judge said in sentencing, of drinking that evening and becoming very unwell. She was taken to the apartment where she was staying and put to bed. She went to sleep and said she awoke to find herself being penetrated. Her evidence as to her condition that evening was supported by evidence from others with her that night. The Crown also called evidence of the analysis of the appellant’s DNA sample to show it matched the male contribution of the mixed DNA profile of a semen-stained vaginal swab taken from the complainant. The evidence was that the sample from a rectal swab taken from the complainant did not disclose DNA from another person.

The defence

[8] The appellant was interviewed by police the day after the alleged rape, 2 February 2013. He told police he had gone to “the sevens” with a friend and did not return to the apartment or do anything of a sexual nature with the complainant.
[9] Subsequently the DNA analysis, closed circuit television footage (CCTV) of the appellant’s car and his mobile phone polling information provided evidence the appellant lied to police about not going back to the address.
[10] Faced with this evidence, the appellant instructed Mr Jefferies he had returned to the apartment where the complainant was asleep. He said he had gone back to check on her and she had awoken and spontaneously made sexual advances to him leading to them having consensual sexual intercourse. The appellant gave evidence at trial to this effect.

The conviction appeal

[11] The appellant’s case has two main aspects. First, it is said the police search of Mr Jefferies’ home and office gave rise to a conflict of interest and Mr Jefferies’ failure to disclose it is such a significant irregularity as to breach the right to a fair trial. Second, the appellant points to a number of ways in which it is said the conduct of the trial was incompetent. Both matters are said to give rise to a miscarriage of justice.

A conflict of interest?

[12] The heart of the appellant’s argument is that the search of Mr Jefferies’ home and office on the evening of the first day of the trial, Tuesday 8 July 2014, created a conflict of interest between Mr Jefferies’ duty of loyalty to his client and his own personal interests. The submission is that Mr Jefferies had an obligation to disclose to the appellant the search had occurred and what was found. Had he made that disclosure, it is submitted the appellant would have sought new counsel and an adjournment of the trial. It follows, Mr Sainsbury (counsel for the appellant) submits, that the conflict is of such significance that prejudice to the appellant’s right to a fair trial is to be presumed. He says it is not appropriate in this situation to assess the matter by reference to the way in which trial counsel conducted the trial.

Discussion

[13] This case falls to be decided under s 385(1) of the Crimes Act 1961.^[3] The focus is on whether there has been a miscarriage of justice.^[4] We agree with the submissions for the Crown that it remains necessary to consider whether there is a real risk that what occurred has affected the outcome. This was the approach taken by this Court in Duncan v R.^[5] In that case trial counsel failed to obtain the informed consent of Ms Duncan before representing both her and a co-defendant at trial. This Court said that “this failure is only material if during the trial counsel was in fact inhibited in the discharge of her duty to defend [Ms Duncan] to best advantage”.^[6] In that situation, a miscarriage of justice would have resulted.
[14] We do not accept that what occurred in terms of the search of Mr Jefferies’ premises was such as to lead inevitably to the conclusion that the appellant has not had a fair trial. The Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 deal with conflicting interests and disclosure is a part of the relevant rules.^[7] That said, we do not see that what has occurred has compromised Mr Jefferies’ freedom to act in the best interests of his client. We can explain our reasoning by reference to the three ways in which the appellant says a conflict of interest arose.
[15] The first proposition is that Mr Jefferies might have hoped to achieve a better outcome in his own case by acting differently in his defence of the appellant. In other words, the fact of the search and what it revealed may have impacted on Mr Jefferies’ willingness to mount a fearless defence.
[16] Mr Sainsbury, appropriately in our view, accepted this was not his strongest argument. As we shall explain, we consider there was no basis for this submission. The first point we make is that it is difficult to see how Mr Jefferies’ actions in defending this appellant could have somehow benefited him in his own dealings with the police. There is no evidence to support the suggestion of some sort of trade-off. Indeed the only evidence is to the contrary. Mr Jefferies made the point there was no link between any of the personnel involved in the prosecution of the appellant’s case and those involved in his own case.
[17] The facts of our case accordingly distinguish it from the United States authorities relied on by the appellant.^[8] Most of those cases deal with the situation where the trial lawyer has been charged at the relevant time.^[9] Further, as both counsel noted, there are significant differences in this respect between the system of prosecution in the United States and that applying in New Zealand. In particular, neither the police nor the Crown solicitors exercise the same control over the criminal process as the United States authorities do.
[18] In any event, we come back to consider the record which, as we shall discuss, does not support the conclusion Mr Jefferies’ approach was compromised in this way.
[19] The second contention is that there would have been pressure on Mr Jefferies because of his concern about the possible impact of the search on his career such that he would have been unable to concentrate on the defence.
[20] Obviously, as Mr Jefferies accepted, as a result of what the police found during the search there were potential difficulties for him and his career. However, that concern needs to be put in context. As we have noted, on the evening of 8 July 2014 the police conducted a search of Mr Jefferies’ home and office. Mr Jefferies said the search was conducted in an amicable manner. Mr Jefferies’ evidence is that the focus of the search was an allegation of money laundering. He was confident he was not likely to face money laundering charges. He was not arrested that evening and was not charged with money laundering. He was charged on other drug-related matters without arrest in late July 2014.
[21] On 14 August 2015 Mr Jefferies was convicted having pleaded guilty to two charges of possession of methamphetamine, one charge of possession of bkMDMA, one charge of possession of utensils for consuming methamphetamine and a charge of possession of a non-approved psychoactive substance. He was fined a total of $1,000.^[10] The charges did involve a Class A drug but, as the sentence indicates, it was not the most serious offending of this type.
[22] Accordingly, while the situation Mr Jefferies faced was, as Mr La Hood for the Crown accepted, an uncommon occurrence, when viewed in the round it did not necessarily mean Mr Jefferies was compromised in his defence of the appellant. Mr Jefferies maintains he was not compromised in this way and consideration of the record of the trial provides support for that view.
[23] The third aspect raised is the appellant’s concern at what occurred and at what that might indicate in terms of drug use by Mr Jefferies. The appellant says he did not know Mr Jefferies had been charged with drug offences until after his trial. His evidence is as follows:

Had I known that the police had searched Mr Jefferies’ home and office and found drugs and that he was facing possible criminal charges I would not have wanted the trial to proceed. I cannot see how my lawyer, who was supposed to be concentrating on my defence, could properly give attention to my case when he is under the pressure of a police enquiry. If I had been told about this or learnt about it during the trial I would have demanded that the trial stop. I would also have wanted to get a new lawyer because it raised the concern that my lawyer might have a drug problem, which could impact on his ability to properly defend me.

[24] In his affidavit filed on the appeal Mr Jefferies says that prior to sentencing he consulted a drug and addiction counsellor. The counsellor provided a report that was before the District Court on sentencing that indicated that he did not meet the criteria for drug addiction. The sentencing Judge, Judge Ruth, observed that on the basis of that report Mr Jefferies could only be regarded “as a recreational drug user”.^[11]
[25] It has to be acknowledged that what occurred would be a matter of concern for the appellant. But, in light of what we know, we do not see it as of such a nature as to warrant the presumption the appellant’s fair trial rights were affected. The critical determination is whether he has in fact had a fair trial and it is to that aspect we now turn.

Incompetence in conduct of trial?

[26] Under this head, the appellant contends trial preparation, particularly of his brief, was inadequate. He also says there was an associated failure to lead from the appellant in evidence-in-chief an explanation about his lies to the police, and a failure to properly cross-examine witnesses including the complainant.

Trial preparation

[27] The appellant says he did not meet with Mr Jefferies to prepare a brief of evidence until the day before the trial commenced. The appellant says that if he had been better prepared, the prosecutor would not have been able to challenge him on the basis he was making things up as he went along. The appellant also says the lack of preparation meant he did not get an opportunity to explain in evidence-in-chief why he lied in his first statement to the police. His evidence is he had understood from Mr Jefferies his first statement would not be used.
[28] Mr Jefferies in his evidence says that although the appellant’s brief was “not fully finalised” until just before the trial, it had been “developed over a period of time”. He said the appellant may have misunderstood their conversations about the statement but he did not tell the appellant prior to the trial that the statement would not be before the jury.
[29] Mr Jefferies’ evidence there had been earlier discussion over the brief but that it was not finalised until just prior to trial is not inconsistent with the appellant’s understanding of events. There were certainly opportunities for the two to discuss what would be in the brief prior to the trial. We say that because, as Mr Jefferies explains, he had acted for the appellant on earlier, less serious charges, and also on an historic charge of aggravated robbery on which the appellant was acquitted. The trial on the latter charge arose out of the identification of the appellant’s DNA during the investigation into the rape. That trial meant there was a lengthy lead-in time to the rape trial.
[30] It is also relevant to note Mr Jefferies’ evidence that the appellant was “not as enthusiastic in engaging” with him on the sexual charges as he was in relation to the robbery allegation. Further, as he said, the rape trial did not involve:

... complicated issues as to the law or facts. Many of the facts were not in dispute and the prime issue was that of consent.

[The appellant] instructed that consent was the only issue as far as his defence was concerned.

There was no question as to identification. Matters did however necessitate [the appellant] in adequately explaining to me the interactions between himself and the complainant in the bedroom. There were no witnesses as to his presence or actions in the bedroom with the complainant.

[31] Finally, as Mr Jefferies stated:

[The appellant’s] instructions were fully reflected in his brief of evidence and his evidence at trial was completely consistent with that brief as prepared. In fact he was found not guilty on one of the counts.

The treatment of the appellant’s initial statement to the police

[32] The issue that then arises is whether Mr Jefferies’ approach to the appellant’s first statement to police has given rise to a miscarriage. At the outset we note that, prior to the commencement of the trial it may be there was some misunderstanding on the appellant’s part about how that statement would feature at trial. But, plainly, it was admissible and was inevitably going to be relied on by the Crown. The Crown opened on this basis so the appellant would at least have been aware from that point onwards that the statement would form part of the case against him.
[33] Mr Jefferies in cross-examination before us was asked why he did not lead the explanation for the statement in evidence-in-chief. He explained his tactic was to rely on the fact there would be a lies direction from the Judge and he thought it better to proceed on that basis. He believed it was better to deal with this aspect in submission rather than draw attention to the statement.
[34] Other defence counsel may have taken a different approach but this was, nonetheless, a tactic that was “reasonable in the context of the trial”.^[12] In any event, we are satisfied Mr Jefferies’ approach did not lead to a miscarriage of justice. The following points are relevant.
[35] First, as we have noted, the Crown referred to the statement in opening. It was therefore already before the jury from that early point in the trial.
[36] Secondly, as anticipated by Mr Jefferies, the trial Judge gave a full lies direction in summing up. In addition, the Judge gave full directions as to the appellant’s explanation. Judge Davidson said this:

[51] On the other hand Mr Jefferies submits there is a rational explanation for his client’s lie. He had had consensual sex with the complainant in fairly seedy circumstances where he would not want his friends or his workmates or her friends to find out. So when asked to account for his movements by Detective Kelly he made a stupid and foolish mistake and tried to duck for cover. He was tired and he was nervous, Mr Jefferies submits to you. Mr Jefferies goes on to submit that his client’s willingness to now acknowledge that this was a lie gives you an insight into his true character; that he is fundamentally a truthful person and so therefore you should accept what he told you in his evidence in Court. ...

The Judge repeated this explanation later in summing up when summarising the defence case.

[37] Finally, at the end of evidence-in-chief, Mr Jefferies led from the appellant that when he was contacted by police the day after the incident he had “had a huge night, got in again, approximately 6 am in the morning, um, and was still in bed when they started banging on my door”. That statement in fact encompassed the essence of the appellant’s eventual response when asked about the matter in crossexamination. He told the jury then “[a]gain, um, I was very hungover, um, I was, had this allegation put to me at that stage and I freaked out.”

Failure to put matters in cross-examination

[38] The appellant is critical of the failure to put to the complainant that the appellant had shaken her awake rather than tapped her on the shoulder and that she had pulled him towards her. The appellant also says the owner of the workplace where the complainant, the appellant and others gathered socially, should have been asked about the fact there were CCTV cameras at the workplace. Finally, it is said there was a failure to put a conversation about taking the complainant home to her friends. These failures led, it is said, to criticism of the appellant by the prosecutor in front of the jury.
[39] None of the matters the appellant says should have been put were critical. For example, the appellant’s evidence was that he shook the complainant. Mr Jefferies put to the complainant the appellant tapped her on the shoulder. The criticism is Mr Jefferies should have put to the complainant she pulled him towards her and kissed him. Given the appellant’s evidence it is difficult to criticise Mr Jefferies’ approach. The difference between shaking and tapping in context is neither here nor there.
[40] Mr Jefferies’ cross-examination of the complainant was not extensive. He did, however, put the defence to her (as he did to other witnesses). For example, he put it to the complainant she had woken up, spoke to the appellant, kissed him and there was some cuddling. He raised with her and other witnesses the level of the complainant’s sobriety. It has to be kept in mind that the issues in this, fairly short,^[13] trial were not complex for the reasons explained in the passage from Mr Jefferies’ evidence we have set out at [30] above. The appellant’s case was always going to face some difficulty given the evidence as to the complainant’s level of intoxication, her resultant ill-health and the appellant’s change in stance. It was reasonable in the circumstances for Mr Jefferies to approach cross-examination in the way he did.
[41] In closing, the prosecutor submitted to the jury the appellant had told “stories, fantasy, not based on fact”. She did make something of the fact various matters had not been put to the witnesses. The prosecutor said this:

... a lot of what he said wasn’t put to others who could comment on them. For example, “She pulled me down.” Never put to [the complainant]. “I shook her.” Never put to [the complainant]. “We kissed for about two to three times.” One kiss was put to [the complainant]. “They said, ‘Drop us to the Sevens and then drop [the complainant] to the apartment.” Never put to [the others present that night] ... . While they were cuddling, he was on top of her. Never put to [the complainant]. Never put to [the complainant], [or to the other witnesses] that he was sitting next to her at the table. Why? Because he was making it up as he was telling us.

[42] However, any impact this submission might have had on the jury has to be considered in light of the clear warning given by the Judge of the need for caution before placing any weight on the submission. Judge Davidson gave the jury the following direction on this topic:

[45] Another aspect of the accused’s evidence, relied upon by the Crown in asking you to reject it, is the submission made by [the prosecutor] that a number of aspects of his evidence, because they were not the subject of questioning of other witnesses by Mr Jefferies, were things that the accused had raised for the first time in Court. Some of them were where he was seated at the drinks at his work function; the travel arrangements from work to the apartment; whether there was CCTV operating at the work function; the extent of kissing and touching between the accused and the complainant. Now you need to be very careful about this line of thinking suggested to you by the Crown. It is correct that in Court cases there is an obligation to ask a witness about things within the knowledge of that witness but please remember that this is a criminal trial with all the pressures and difficulties associated with that. It could not be said that Mr Jefferies has not put his client’s case fairly and squarely; he has. A few points may not have been precisely asked of the Crown witnesses, but I am sure you will have all readily appreciated the two competing cases as they have been placed before you. So while you can think about the submission made by the Crown, please do not get bogged down with it.

Failure to challenge the admissibility of DNA evidence

[43] The appellant also says Mr Jefferies erred in not challenging the admission of DNA evidence.
[44] We need to put this in context by explaining the chronology of events.
[45] When the appellant spoke with police at the station on 2 February 2013, he was given a cup of water. He was asked but declined to provide a DNA sample. He was told police had obtained elimination samples from the two other men who had been with the complainant that night.
[46] When the appellant left the interview he left behind a purple wristband he had been wearing. It was the wristband for the first day of the Sevens tournament. The police took the wristband and the cup from which the appellant had drunk.
[47] On 4 February 2013, the cup, wristband and a vaginal swab from the complainant were analysed by the Institute of Environmental Science and Research Ltd (ESR). The semen-stained vaginal swab from the complainant produced a mixed DNA profile with a male contribution matching that obtained from the cup and wristband.
[48] When the appellant was arrested, on 20 February 2013, he provided an “intention to charge” bodily sample but refused to provide a suspect bodily sample. ESR analysis of the intention to charge sample matched that from the complainant.
[49] On 9 April 2013 the police obtained a suspect compulsion order to obtain a suspect bodily sample. The sample provided by the appellant again matched the male contribution of the mixed DNA profile from the semen-stained sample.
[50] We do not need to decide on the lawfulness or otherwise of the police actions in taking the initial sample. The appellant’s argument on this point depends on the proposition that, absent the initial sample, the appellant would not have been charged and the later samples would not have been obtained. In contrast, Mr Jefferies’ thinking on this topic was that any challenge to the admissibility of the DNA evidence would be an academic exercise because the later samples were lawfully obtained.
[51] We agree, for the reasons given by Mr La Hood in his written submissions that even if the DNA evidence from the cup and wristband was improperly obtained, the other evidence against the appellant was sufficient for the police to apply for and obtain a suspect compulsion order. Alternatively, there was sufficient evidence for the police to charge the appellant and utilise the “intention to charge” bodily sample procedure, as the police did, and then apply for a suspect compulsion order.
[52] The written submissions for the Crown accurately summarise the position in terms of the other evidence against the appellant. That included:

62.1 the appellant was one of three males who knew the victim was intoxicated and alone in the apartment and that the door could be pushed open without a key;

62.2 the other two males had spent the rest of the evening at the Sevens, in the company of the other female, arriving home while Police were present at the address;

62.3 the other two males and the victim’s boyfriend had provided elimination samples to the police and these could have been tested to exclude them as suspects if that was necessary to support a suspect compulsion order application;

62.4 by contrast the appellant had refused to provide an elimination sample;

62.5 the appellant had lied to police in his first statement, when he said that he had not returned to the apartment after dropping the victim off with the group; and

62.6 CCTV footage and telecommunications supported the conclusion that the appellant had travelled back to the apartment on a second occasion and had lied to the police about not doing so.

[53] Accordingly, we see no merit in any of the challenges to the conduct of the trial.

Actions of the complainant’s support person

[54] The appellant and Mr Jefferies noticed that, during the first part of the complainant’s evidence, the support person was gesturing and indicating when she was in view of the jury. The transcript of the discussion on this topic during the adjournment shows Mr Jefferies said the support person had been “snarling and glaring”. There was a discussion between the Court staff, the prosecutor and Mr Jefferies on this. It appears the appellant and Mr Jefferies were the only persons to notice the support person’s actions. The transcript of the discussion records the prosecutor saying she will speak to the support person.
[55] Mr Sainsbury says the Judge should have been informed. The record does not assist on this aspect. The recording indicates the Court attendant was to inform the Judge but it is unclear whether that occurred. There is however no merit in this point. To the extent there was an issue it appears to have been dealt with. The support person was apparently moved to a different position and no further issue arose. We would have expected either the appellant or Mr Jefferies to raise the matter again if it had not been resolved. It is not a matter giving rise to the risk of a miscarriage of justice.

The sentence appeal

[56] Judge Davidson adopted a starting point of nine and a half years imprisonment. There were no mitigating factors so that was the sentence imposed.
[57] In placing the offending in the middle of band two in R v AM (CA27/2009),^[14] the Judge identified the following aggravating features: premeditation (the appellant knew she was intoxicated and unwell as he had helped take her to the apartment); unlawful entry; a very vulnerable victim; a “dramatic impact” on the victim; and a breach of trust.^[15]
[58] It was initially submitted the Judge had erred in adopting the same starting point in sentencing as had been adopted in a sentencing indication. The sentencing indication related to two charges of sexual violation but, as we have noted, the appellant was acquitted on the second charge.^[16] This point was not pursued when it was clarified a higher starting point (11 years imprisonment) had been adopted in the sentencing indication.^[17] The focus became whether the starting point was manifestly excessive. This was offending involving the combination of a very intoxicated and therefore vulnerable victim, a level of planning, and unlawful entry of a home. When these factors are taken together, the starting point was within the available range.

Result

[59] An extension of time to file the notice of appeal is granted. The appeal against conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

---

^[1] R v Simpson DC Wellington CRI-2013-085-1975, 8 August 2014 [sentencing remarks].

^[2] Sentencing remarks, above n 1.

^[3] The charges were filed prior to the commencement of the relevant parts of the Criminal Procedure Act 2011 and the appellant was tried on indictment.

^[4] R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70]; R v Scurrah CA159/06, 12 September 2006 at [17]; and see Wiley v R [2016] NZCA 28 at [11]–[12].

^[5] Duncan v R [2013] NZCA 354.

^[6] At [19].

^[7] Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 5.1 and 5.4.1; and see Lawyers and Conveyancers Act 2006, s 4. See generally G E Dal Pont Lawyers’ Professional Responsibility (5th ed, Thomson Reuters, Sydney, 2013) at [6.05], [6.10] and [6.25]; and Jonathan Herring Legal Ethics (Oxford University Press, Oxford, 2014) at 173–181.

^[8] Holloway v Arkansas [1978] USSC 49; 435 US 475 (1978); State of New Jersey v Cottle 946 A 2d 550 (NJ 2008); Harris v The Superior Court of Los Angeles County 225 Cal App 4th 1129 (2014); United States v DeFalco [1980] USCA3 13; 644 F 2d 132 (3d Cir 1979); and Rugiero v United States 330 F Supp 2d 900 (ED Mich 2004).

^[9] In Rugiero v United States, above n 8 the lawyer was charged in between the trial and sentencing. Holloway v Arkansas, above n 8 deals with conflict arising from representation of co-defendants.

^[10] R v Jefferies [2015] NZDC 16190 [District Court sentencing]. An appeal against the Judge’s refusal to discharge Mr Jefferies without conviction was dismissed: Jefferies v New Zealand Police [2015] NZHC 3153.

^[11] District Court sentencing, above n 10, at [24].

^[12] R v Scurrah, above n 4, at [18].

^[13] The evidence concluded on the third day of trial.

^[14] R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [98].

^[15] Sentencing remarks, above n 1, at [13].

^[16] R v Simpson DC Wellington CRI-2013-085-1975, 8 July 2014.

^[17] At [20].